picked up the two indictments and sentenced him from two to five years on each, same to run consecutively, and before and after doing so, the judge asked no questions. None of this testimony was traversed by answer or by testimony. Petitioner also requested that this court issue subpoenas for various persons including petitioner's brother and wife. It does not appear that these witnesses would corroborate his testimony as to the alleged denial of due process and it is not out province to try the forgery cases on their merits.
The principal question before this court is whether the applicant has been denied due process.
In his application to the Superior Court, petitioner tried to convey the impression that he did not know what he was signing when he pleaded guilty, but that he thought that the papers to which he affixed his signature related merely to a violation of parole. His testimony here is to the same effect except he now adds (probably to counter a pointed observation of the Superior Court) that he could not see the words 'Indictment' and 'Forgery,' buth typed in capital letters above his signature, because these papers were slipped just partially from their envelopes and just enough to permit him to sign his name. It is true that the words 'Indictment' and 'Forgery' appear about five inches above his signature, but 1/4 inch above his signature are the words 'Defendant pleads guilty,' and in view of the prisoner's long experience in criminal court, we do not believe he did not know that he was entering such a plea.
The allegedly defective proceedings before the two Justices of the Peace and the fact that warrants of arrest were not issued (warrants were not included among the original papers sent to us) cannot be considered by this court for the reason that applicant did not complain to the Indiana County Courts concerning the alleged discrepancies. Such objections cannot be raised initially in a habeas corpus proceeding especially when it is not shown that they were raised in the original proceedings before the county court having jurisdiction over these preliminary matters.
The charge that applicant was denied counsel cannot be sustained under the evidence. The applicant had been involved in criminal courts for various offenses, including forgery, approximately nine times prior to 1941.
The Superior Court stated in its opinion that it did not appear that Geisel asked for counsel, and his applications to this court and to the Superior Court, as well as the Supreme Court, indicate that he had retained counsel to secure his release on bail. He therefore had access to counsel and knew of his right to obtain counsel. As the District Court for the Western District of Pennsylvania stated in United States ex rel. Priester v. Ashe, D.C. W.D. Pa. 1949, 86 F.Supp. 673, 674: 'Contrary to the views expressed in these petitions, the Supreme Court has not declared that the Pennsylvania courts must provide the defendants in all criminal cases with counsel.'
The contention that he was denied witnesses is hardly understandable because the prisoner pleaded guilty and there was no trial. The presumption is that the procedure in the county court preliminary to passing sentences upon defendants who have pleaded guilty is regular and that their rights are duly safeguarded by both the court and the district attorney. The burden is on the petitioner to show primary facts, not inferences, which warrant this court's intervention.
After carefully considering the testimony of the applicant and all the circumstances in this case we find that petitioner's rights were safeguarded and due process was observed.
Another ground which appears to us to compel a dismissal of this petition is that it is not evident that the petitioner exhausted the remedies available to him in the courts of the State. Exhaustion of state remedies has been established by precedent
as a prerequisite to the granting of a writ of habeas corpus by a United States District Court.
In the instant case, the petitioner instituted his first application for a writ of habeas corpus in the Superior Court of Pennsylvania. He did not file an application for a writ of habeas corpus, alleging denial of due process, in the Court of Common Pleas of Allegheny County, Pennsylvania. The courts of common pleas of Pennsylvania have jurisdiction to issue writs of habeas corpus which is derived from the common law and statute.
It is in the common pleas courts that the petitioner is best able to secure a hearing, present evidence and have testimony taken. He is thus able to build a record from which an appeal can be taken.
It is inherent in the very term 'habeas corpus' that the prisoner will be produced before the court.
In the Rule to Show Cause granted by the Superior Court, it is stated, 'The relator need not be produced in Court.' Thus, by failing to pose factual questions in the appropriate court of common pleas, the petitioner lost an opportunity to appear before a judge which is a basic consideration of habeas corpus practice. It is interesting to note that the Supreme Court of Pennsylvania has recently held that the interests of the relator and the Commonwealth 'will be best served in this and similar cases by relator making application to the appropriate (lower) court where, with proper petitions, answers and evidence (when indicated), that court will, when required, make necessary findings of fact and conclusions of law, and enter such orders and decrees as it may deem appropriate. Appeal may then be had to either of the appellate courts.'
Furthermore, in Darr v. Burford, supra, 339 U.S. at page 204, 70 S. Ct.at page 590, the court stated that the doctrine of comity teaches 'that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter. [emphasis added.]' As a matter of comity, therefore, this court should defer action until the proper Pennsylvania court of common pleas has had an opportunity to pass upon the petitioner's allegations. It is our considered opinion, in the light of the foregoing, that the petitioner has not exhausted all of his state remedies not has he proved exceptional circumstances which would require a departure from this established rule.
Substantially the same contentions raised in this court were raised by the prisoner in his original writs to the Superior Court and to the Supreme Court. The concurrence of these learned appellate tribunals in denying the writs provides this court with ample assurance that the prisoner has not suffered from a failure of due process.
Therefore, aside from the question of whether the petitioner has exhausted his state remedies, his bid for freedom in our judgment must fail and we conclude as a matter of law that there was no denial of due process. The petition for the writ will be denied.