The opinion of the court was delivered by: GOURLEY
On January 21, 1949, petitioner was sentenced to the Western State Penitentiary by the Court of Westmoreland County, Pennsylvania, for a period of not less than five years or more than ten years.
Subsequent thereto, the date not appearing in the relator's complaint, a petition for writ of habeas corpus was filed in the Supreme Court of Pennsylvania.
On June 12, 1950, the Supreme Court granted a rule on the state authorities to show cause why the writ of habeas corpus should not issue, returnable to July 12, 1950.
On September 23, 1950, the petition was refused by the Supreme Court of Pennsylvania by Per Curiam Order, 'Rule Discharged.'
Petitioner then filed application for writ of certiorari to the Supreme Court of the United States. Subsequent thereto, he filed a motion to dismiss said application, and on October 23, 1950, the Supreme Court of the United States dismissed said application. Allen v. Ashe, 340 U.S. 860, 71 S. Ct. 84.
Subsequently the petitioner filed application for writ of habeas corpus in the Court of Common Pleas of Allegheny County, Pennsylvania, which is the jurisdiction where he is incarcerated. Said Court dismissed the petition on January 18, 1951 without hearing, on the basis of the pleadings and court records.
Petition for rehearing was filed, which was refused on March 26, 1951.
Petition for rehearing was then filed with the Supreme Court of Pennsylvania, which was dismissed by Per Curiam Order, 'Petition Dismissed' on April 23, 1951.
Petition for writ of certiorari was filed with the Supreme Court of the United States, which was denied on June 4, 1951, 71 S. Ct. 1007.
Leave will be granted for petitioner to file a petition in habeas corpus in forma pauperis, but it is necessary to refuse the petition.
To invoke the jurisdiction of this Court, the petitioner must show that he filed a petition in the appropriate court in the first instance in Pennsylvania, that in due course he appealed an adverse decision through the Superior Court of Pennsylvania and the Supreme Court of Pennsylvania, and that he sought certiorari in the Supreme Court of the United States in timely fashion.
Only such extraordinary circumstances as those present in United States ex rel. Auld v. Warden of New Jersey State Penitentiary, 3 Cir., 187 F.2d 615, could justify the waiving of any of the foregoing steps prior to invoking the jurisdiction of this Court.
The doctrine of the exhaustion of state remedies before resort may be had to a federal district court contemplates the full use of the state court machinery of that State. Darr v. Burford, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761; Gusik v. Schilder, 340 U.S. 128, 71 S. Ct. 149.
The petition under consideration discloses no reason which warrants a deviation from the salient rule set ...