the court was referring to the sentence vacated in Com. ex rel. Robinson v. Maroney, supra, and that the court was aware that such sentence had been set aside:
'Through a decision of the Superior Court you effected a release under a habeas corpus from that sentence, and in investigating your case the court, of course, came across the decision, 175 Pa.Super. 529, 107 A.2d 188.'
Otherwise, relator fails to point out any way in which the court was misinformed when it sentenced him. Rule 37 of the Local Rules of this court provides:
'A petition to this Court for writ of habeas corpus shall be in writing, verified and shall set forth:
'(j) if petitioner is in custody under sentence of a State Court and has not exhausted all remedies available in the courts of the state, the reasons for such failure to exhaust available remedies and the facts upon which intervention of a federal court is sought to protect petitioner's constitutional rights.'
In this case, 'the facts upon which intervention * * * is sought' are not set forth in such a way as to present any question upon which the court can pass. Relator may have in mind some definite statement the sentencing court made and the precise reason why that statement was materially false, but such does not appear from his petition. Furthermore, the court has a wide discretion in sentencing and is not bound by formal rules of evidence in evaluating the information it considers. See Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).
(3) Relator also contends that he was deprived of effective assistance of counsel in that his case was juggled between two attorneys from the Voluntary Defender's office. Like the contention that pre-sentence data was prejudicially inaccurate, no specific facts in support of this argument are contained in the petition.
Relator merely states that he had two lawyers but fails to show how that worked to his prejudice.
Relator is not entitled to court-appointed counsel in these circumstances. As stated in Elijah Jackson v. United States, 221 F.Supp. 755, E.D.Pa., August 21, 1963:
'* * * examination of the controlling authorities shows that petitioner is not entitled, as a matter of right, to court-appointed counsel. United States v. Keller, 284 F.2d 800 (3rd Cir., 1960), citing Clatterbuck v. United States, 105 U.S.App.D.C. 295, 266 F.2d 893 (1959), and Vinson v. United States, 235 F.2d 120 (6th Cir., 1956); Green v. United States, 158 F.Supp. 804, 807 (D.Mass.1958), aff'd. 256 F.2d 483 (1st Cir., 1958), cert. den. 358 U.S. 854, 79 S. Ct. 83, 3 L. Ed. 2d 87 (1958). Petitioner's Motion and memorandum raise only one point, and that is a question of law: namely, was the indictment fatally defective because it did not name the purchaser of the narcotics it charged Jackson with selling. It is noted that petitioner had counsel of his own choosing at all proceedings in this court, including trial and sentencing. This court also appointed counsel to aid Jackson in his appeal to the United States Court of Appeals for the Third Circuit. The cases cited above make it clear that Jackson has no right to court-appointed counsel in connection with this Motion under 28 U.S.C.A. § 2255.
'The language of 28 U.S.C.A. § 1915 leaves appointment of counsel to the discretion of the court in each particular case. Since no issues of fact are raised by this Motion, there will be no need to take further testimony and, therefore, no need for the aid of experienced trial counsel. Cf. Jones v. United States, 290 F.2d 216 (10th Cir., 1961); Cain v. United States, 271 F.2d 337 (8th Cir., 1959).'
The fact that this proceeding is habeas corpus and Jackson's was under 28 U.S.C.A. § 2255 does not make the cases cited inapplicable. See Sanders v. United States, 373 U.S. 1, 13, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963), citing United States v. Hayman, 342 U.S. 205, 219, 72 S. Ct. 263, 96 L. Ed. 332 (1952). The petition raises no substantial issue of fact which requires the aid of experienced trial counsel to sift through a complicated record or to take testimony. Therefore, the court's discretion ought not to be exercised in favor of appointing counsel.
And now, September 3, 1963, upon consideration of the above Petitions and memoranda of law in support thereof, it is ordered that the Petition for Writ of Habeas Corpus and the Petition for Appointment of Counsel are denied.