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October 9, 1961

UNITED STATES of America ex. rel. George Lee RIVERS
David N. MYERS, Superintendent, State Correctional Institution at Graterford, Graterford, Pa

The opinion of the court was delivered by: DUSEN

The petition for a writ of habeas corpus asks this court to set aside a death sentence imposed by a three-judge state court after the entry of a plea of guilty to murder in the first degree on the ground that the sentence is "in violation of petitioner's right to due process of law" (par. 15 of the petition). Relator was a participant in a robbery described as follows by the Supreme Court of Pennsylvania in Commonwealth v. Cater et al., 1959, 396 Pa. 172, 175, 152 A.2d 259, 261: *fn1"

 The Supreme Court of Pennsylvania has affirmed the sentence, Commonwealth v. Cater et al., 1960, 402 Pa. 48, 166 A.2d 44, and the Supreme Court of the United States has denied a petition for a writ of certiorari (P-2), Rivers v. State of Pennsylvania, 1961, 366 U.S. 915, 81 S. Ct. 1090, 6 L. Ed. 2d 238.

 Ever since Holden v. Hardy, 1898, 169 U.S. 366, 389-390, 18 S. Ct. 383, 387, 42 L. Ed. 780, the Supreme Court of the United States has declined "to define with precision the words 'due process of law' * * * (since) (i)t is sufficient to say that there are certain immutable principles of justice, which inhere in the very idea of free government which no member of the Union may disregard, as that no man shall be condemned in his person or property without due notice, and an opportunity of being heard in his defence." See Bute v. People of State of Illinois, 1948, 333 U.S. 640, 648-649, 68 S. Ct. 763, 92 L. Ed. 986. In the Bute case, supra, the court said at pages 649-650 of 333 U.S., at page 768 of 68 S. Ct.:

"The Fourteenth Amendment, however, does not say that no state shall deprive any person of liberty without following the federal process of law as prescribed for the federal courts in comparable federal cases. It says merely 'nor shall any State deprive any person of life, liberty, or property, without due process of law; * * *.' This due process is not an equivalent for the process of the federal courts or for the process of any particular state * * *. This clause in the Fourteenth Amendment leaves room for much of the freedom which, under the Constitution of the United States and in accordance with its purposes, was originally reserved to the states for their exercise of their own police powers and for their control over the procedure to be followed in criminal trials in their respective courts. It recognizes that differences arise naturally between the procedures in the state courts and those in the federal courts."

 The Supreme Court of the United States has frequently emphasized that "it has long been recognized as the very essence of our federalism that the States should have the widest latitude in the administration of their own systems of criminal justice." Hoag v. State of New Jersey, 1958, 356 U.S. 464, 468, 78 S. Ct. 829, 833, 2 L. Ed. 2d 913; see United States ex rel. Thompson v. Price, 3 Cir., 1958, 258 F.2d 918, 921-922.

 Relator relies on the principle, stated in Townsend v. Burke, 1948, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255, 92 L. Ed. 1690, that a "careless or designed pronouncement of sentence on a foundation * * * extensively and materially false, which the prisoner had no opportunity to correct by the services which counsel would provide, * * * renders the proceeding lacking in due process." This record does not justify the application of the above principle and, hence, this petition must be denied. *fn2"

"When the shadow of the electric chair hangs ominously over the courtroom, no one is more keenly aware than the sentencing judges that 'no more awesome duty nor solemn obligation comes within the province of a judge than the decision whether penalty of death or life imprisonment shall be imposed upon a convicted first degree murderer.' "

 Relator relies on this alleged inaccurate language in the opinion of the sentencing court, which was filed after the appeal had been docketed in the Supreme Court of Pennsylvania *fn3" and, hence, his counsel had no opportunity to point out to the sentencing court such inaccuracies:

 A. Participants "each knowing of the presence of a loaded gun in their midst" (245b of P-4)

 There was no direct testimony that relator knew the gun was loaded. He did know that one of the other participants had a gun *fn4" (135a, 138-9a of P-3), had on shoes enabling him to run faster (139a of P-3), suggested to his companions that "some quick money" was available at the pharmacy (135a-136a & 145a of P-3), and volunteered to "be the lookout" (136a) since the other participants had had their fingerprints taken and he had not had his taken (139a of P-3). In Townsend v. Burke, supra, the court made clear that the drawing of such an inference (that defendant knew the gun was loaded) *fn5" from the evidence by a sentencing judge was not a violation of due process of law, using this language at page 741 of 334 U.S., at page 1255 of 68 S. Ct.:

"Nor do we mean that mere error in resolving a question of fact on a plea of guilty by an uncounseled defendant in a non-capital case would necessarily indicate a want of due process of law. Fair prosecutors and conscientious judges sometimes are misinformed or draw inferences from conflicting evidence with which we would not agree. But even an erroneous judgment, based on a scrupulous and diligent search for truth, may be due process of law."

 In United States ex rel. Marcial v. Fay, 2 Cir., 1959, 267 F.2d 507, at page 511, the court directed the dismissal of a petition for a writ of habeas corpus, relying on the above-quoted ...

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