The opinion of the court was delivered by: MURPHY
Petitioner, convicted of murder and sentenced to death in the Court of Oyer and Terminer of Bucks County, Pennsylvania, and presently confined in this district, sought on April 3, 1951, a writ of habeas corpus and a stay of execution alleging that the Commonwealth of Pennsylvania denied him a fair and impartial trial and was about to deprive him of his life without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. The Commonwealth moved to dismiss the petition as insufficient at law.
'A conviction after public trial in a state court * * * places the burden on the accused to allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings, that in his prosecution the state so departed from constitutional requirements as to justify a federal court's intervention to protect the rights of the accused. In re Cuddy, 131 U.S. 280, 9 S. Ct. 703, 33 L. Ed. 154; Johnson v. Zerbst, 304 U.S. 458, 468, 58 S. Ct. 1019, 1024, 82 L. Ed. 1461; Walker v. Johnston, 312 U.S. 275, 286, 61 S. Ct. 574, 579, 85 L. Ed. 830; Hawk v. Olson, 326 U.S. 271, 279, 66 S. Ct. 116, 120, 90 L. Ed. 61. The petitioner has the burden also of showing that other available remedies have been exhausted or that circumstances of peculiar urgency exist.' Darr v. Burford, 339 U.S. 200-218, 70 S. Ct. 587, 597, 94 L. Ed. 761.
Following his conviction June 14, 1948, relator was denied a new trial by opinion and order of the trial court February 16, 1949; his conviction and sentence were affirmed by the Supreme Court of Pennsylvania in opinion by the late Chief Justice Maxey, May 26, 1949 -- Com. v. Darcy, 362 Pa. 259, 66 A.2d 663, certiorari denied, sub nom Darcy v. Com. of Pennsylvania, 338 U.S. 862, 70 S. Ct. 96, 94 L. Ed. 528; a petition to the Supreme Court of Pennsylvania for a writ of habeas corpus was denied August 12, 1949, certiorari denied, sub nom Com. of Pennsylvania ex rel. Darcy v. Handy, 338 U.S. 862, 70 S. Ct. 96, 94 L. Ed. 528; application for commutation of sentence denied by Pennsylvania Board of Pardons, May 1950; application for re-argument granted June 1950; argued March 20, 1951, denied March 21, 1951; rehearing denied March 21, 1951.
April 2, 1951, petition to the Supreme Court of Pennsylvania, seeking re-argument of the motion for new trial which had been denied May 26, 1949; denied April 3, 1951. Petitioner then sought a writ of habeas corpus in this court.
The only time the precise questions in controversy were raised in the Pennsylvania courts was in the relator's petition for reargument, denied without opinion April 3, 1951. Cf. Frank v. Mangum, 237 U.S. 309, at page 328, 35 S. Ct. 582, 59 L. Ed. 969. It was not clear whether the denial was on the merits or on procedural grounds, or whether it constituted a final judgment sufficient to support a petition to the United States Supreme Court for a writ of certiorari. As to the power of the Supreme Court of Pennsylvania to treat a petition for re-argument as a petition for a writ of habeas corpus, see Com. v. Ragone, 317 Pa. 113, at pages 126-128, 176 A. 454; Act of May 22, 1722, 1 Sm.Law 140 and Act of June 16, 1836, P.L. 785, 17 P.S.Pa. § 41. But see United States ex rel. Keener v. Foust, D.C.E.D.Pa., 84 F.Supp. 939, at page 942.
In a petition for habeas corpus to the Supreme Court of Pennsylvania, the questions in controversy could be squarely raised and in the event of denial a way prepared to make application to the United States Supreme Court for writ of certiorari. Uveges v. Com. of Pennsylvania, 335 U.S. 437, 69 S. Ct. 184, 93 L. Ed. 127; Com. of Pennsylvania ex rel. Billman v. Burke, 3 Cir., 170 F.2d 413, at page 417; Application of Baer, 3 Cir., 169 F.2d 770; cf. Com. ex rel. Paylor v. Claudy, 366 Pa. 282, 287, 77 A.2d 350.
Following the teachings and command of Darr v. Burford, supra; Ex parte Hawk, 321 U.S. 114, 64 S. Ct. 448, 88 L. Ed. 572; United States ex rel. Auld v. Warden of New Jersey State Penitentiary, 3 Cir., 1951, 187 F.2d 615, at page 618; 28 U.S.C.A. § 2254, we suggested to counsel for relator that a petition for writ of habeas corpus and a stay of execution should be presented to the Supreme Court of Pennsylvania and, in the event of an unfavorable decision, that application be made to the United States Supreme Court for writ of certiorari.
To afford relator an opportunity to comply, a stay of execution already being in effect,
and so that the court might study the transcript of the trial proceedings, we recessed the hearing until Tuesday, April 10, 1951.
April 10, 1951, the Supreme Court of Pennsylvania in a per curiam opinion -- sub nom Com. ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785, 786, -- discussed the various contentions of the relator and found the petition to be 'wholly without merit.'
Instead of requesting any individual justice of that court or any individual justice of the United States Supreme Court for a stay of execution to afford an opportunity to prepare a petition for a writ of certiorari (see Rules of the Supreme Court of the United States, Rule 38(6), 28 U.S.C.A.; 28 U.S.C.A. § 2101(f); 335 U.S. 915, and see Morgan v. Horrall, 9 Cir., 1949, 175 F.2d 404, at page 407) counsel for relator pursued neither course but appeared before us on April 11, 1951, requesting that we grant the writ or, in the alternative, grant a stay of execution pending proceedings in the United States Supreme Court. See 28 U.S.C.A. § 2251.
' Ex parte Hawk (321 U.S. 114, at pages 116-117, 64 S. Ct. 448, 88 L. Ed. 572) prescribes only what should 'ordinarily' be the proper procedure; all the cited cases from Ex parte Royall (117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868), to Hawk recognize that much cannot be foreseen, and that 'special circumstances' justify departure from rules designed to regulate the usual case. The exceptions are few but they exist. See White v. Ragen, 324 U.S. 760, 65 S. Ct. 978, 89 L. Ed. 1348; Ex parte Royall, 117 U.S. 241, 251, 6 S. Ct. 734, 740, 29 L. Ed. 868. Other situations may develop. Compare Moore v. Dempsey, 261 U.S. 86, 43 S. Ct. 265, 67 L. Ed. 543. Congress has now made statutory allowance for exceptions such as these, leaving federal courts free to grant habeas corpus when there exist 'circumstances rendering such (state) process ineffective to protect the rights of the prisoner'. 28 U.S.C.A. § 2254.' Darr v. Burford, supra, 339 U.S. at page 210, 70 S. Ct. at page 593.
Was there anything shown to make relator's situation one of 'peculiar urgency', requiring prompt federal intervention? The area must be defined case by case but as yet it is an 'unchartered sea'. See Note 61 Harv.L.Rev. 657 at 667; Note 50 Col.L.Rev. 856 at 859; Sunal v. Large, 332 U.S. 174, 178-181, 184-187, 188-190, 67 S. Ct. 1588, 91 L. Ed. 1982; United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S. Ct. 1, 70 L. Ed. 138; Tinsley v. Anderson, 171 U.S. 101, 104-105, 18 S. Ct. 805, 43 L. Ed. 91; Ex parte Hawk, supra, 321 U.S. 114, 116-117, 64 S. Ct. 448, 88 L. Ed. 572; Johnson v. Wilson, 5 Cir., 131 F.2d 1; 39 C.J.S., Habeas Corpus, § 65(b)(2), page 611; 25 Am.Jur. Tit. Habeas Corpus § 18, p. 155. A bare constitutional question is alone not enough. United States ex rel. Murphy v. Murphy, 2 Cir., 108 F.2d 861, certiorari denied, Murphy v. Warden of Clinton State Prison, 309 U.S. 661, 60 S. Ct. 583, 84 L. Ed. 1009; Knewel v. Egan, 268 U.S. 442, 45 S. Ct. 522, 69 L. Ed. 1036; United States ex rel. Rogalski v. Jackson, 2 Cir., 146 F.2d 251, certiorari denied 324 U.S. 873, 65 S. Ct. 1011, 89 L. Ed. 1427. 'Mere convenience cannot justify use of the writ as a substitute for an appeal.' Adams v. United States ex rel. McCann, 317 U.S. 269, at page 274, 63 S. Ct. 236, 239, 87 L. Ed. 268, 143 A.L.R. 435.
'In so delicate a matter as interrupting the regular administration of the criminal law of the State by this kind of attack, too much discretion cannot be used, and it must be realized that it can be done only upon definitely and narrowly limited grounds.' Mr. Justice Holmes in Ashe v. United States ex rel. Valotta, 270 U.S. 424, at page 426, 46 S. Ct. 333, 334, 70 L. Ed. 662, and see Urquhart v. Brown, 205 U.S. 179, 27 S. Ct. 459, 51 L. Ed. 760.
As we understand it, United States ex rel. Auld v. Warden of New Jersey State Penitentiary, supra, 187 F.2d 615, at page 618, holds that the fact that the relator has been sentenced to death is not sufficient, nor where, in addition to the above, the State Supreme Court has denied the petition on its merits, as long as the avenue of certiorari to the Supreme Court of the United States remains open.
As to the stay of execution, the relator had the provisions of Rule 38 open to him, as well as the possibility of seeking an additional stay from the Governor of Pennsylvania. In addition we were confronted with the provision in 28 U.S.C.A. § 2251 that the effect of a stay would be to make void the proceeding against the relator in the State Court. Perhaps more complete relief would be thus provided than that which would be granted by issuing the writ itself. See 28 U.S.C.A. § 2243. 'The court shall * * * dispose of the matter as law and justice require.'
'If some rational balance is to be preserved in the matter of handling petitions for writs of habeas corpus in Federal District Courts it is proper that petitioners should be required to exhaust available remedies under the present liberal procedure which seems wholly adequate to meet a situation of ...