The opinion of the court was delivered by: MCILVAINE
On October 8, 1947, James H. Woods was arrested on charges of armed robbery, and sentenced on four indictments to a total term of 20 to 40 years.
At No. 3101 October 1952, James H. Woods petitioned the Common Pleas Court of Allegheny County for a writ of habeas corpus and was granted a hearing thereon. On March 17, 1953, the court in its opinion denied the writ. On June 18, 1956, James H. Woods again petitioned the Court of Common Pleas of Allegheny County for a writ of habeas corpus, and the Court dismissed this at No. 2473 July 1956. Before petitioner could save the amount of money necessary to pay the filing fee of the Prothonotary of the Superior Court the statutory period for taking such an appeal had run out. By its order dated February 4, 1957, the Court refused to allow an extension of time within which to file an appeal. Petitioner then filed a petition to the Supreme Court of Pennsylvania for permission to file his petition nunc pro tunc. On March 4, 1957, the Supreme Court entered its order dismissing his petition nunc pro tunc. Petitioner then filed a petition for a writ of certiorari in the United States Supreme Court which was denied on June 10, 1957, 354 U.S. 911, 77 S. Ct. 1300, 1 L. Ed. 2d 1430.
On September 11, 1957, there was a petition filed in this Court for a writ of habeas corpus. On October 7, 1957, the District Attorney for Allegheny County filed a motion to dismiss claiming that on its face the petition showed that the petitioner had not exhausted the remedies available to him in the Appellate Courts of the Commonwealth of Pennsylvania.
Woods' allegation is that because of his poverty he was unable to pay the filing fee in the Pennsylvania Court, and the Court would not and, in fact, could not waive the fee. The District Attorney of Allegheny County admits that the requirement for the payment of the sum of $ 12 for the filing of an appeal is mandatory and cannot be waived. The District Attorney for Allegheny County does not seriously challenge Woods' protestations of poverty, nor has he suggested any remedy in the Pennsylvania Courts which is available to him.
At the hearing held on October 21, 1957, it was definitely established that the income of a prisoner is approximately $ 3 per month and that Woods, in fact, during the period from May, 1956, to January, 1957, which includes the critical period as to this case, earned only $ 4.05.
'Where the only state remedies are inaccessible to a prisoner because of his poverty, his failure to pursue those remedies does not bar him from applying to the federal courts for relief.' See United States ex rel. Embree v. Cummings, 2 Cir., 1956, 233 F.2d 188, 189, and cases cited therein.
This Court finds as a fact that he did not have counsel, nor did he waive this right, nor was he given the opportunity to have counsel, and that the lack of counsel under all the relevant and competent evidence introduced in this case was critical and unfair to petitioner. He was facing severe charges for which he could have been sentenced to 120 years of prison and for which he did receive a sentence of 20 to 40 years.
In this setting and on the authority and reasoning of Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461; Uveges v. Com. of Pennsylvania, 1948, 335 U.S. 437, 69 S. Ct. 184, 93 L. Ed. 127; and Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 1956, 350 U.S. 116, 76 S. Ct. 223, 100 L. Ed. 126, a writ of habeas corpus is granted.
Nothing we have said here precludes a new trial or the taking of proper steps to hold the defendant in custody pending such a new trial. See United States ex rel. Thompson v. Dye, 3 Cir., 1955, 221 F.2d 763, 768.
This opinion shall serve as Findings of Fact and Conclusions of Law.
On Petition for Rehearing and for Leave to Amend Answer
In an Opinion of this Court filed on October 31, 1957, this Court found as a fact that James H. Woods, the petitioner, a 21-year-old defendant of low mentality, was sentenced from 20 to 40 years in the penitentiary without benefit of opportunity ...