The opinion of the court was delivered by: ROSENBERG
The relator has here presented a Petition for Writ of Habeas Corpus. He is confined in the State Correctional Institution at Pittsburgh, Pennsylvania, serving a maximum sentence of twelve years as imposed upon him on April 14, 1960, by Judge Shumaker of the Butler County Court, Pennsylvania.
The relator, according to his petition, filed for a writ of habeas corpus in the Court of Common Pleas of Butler County on February 10, 1961 and after hearing on July 31, 1961, the petition was denied on August 3, 1961. On July 5, 1961, the relator filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania at Civil Action No. 61-403 to enforce the County Court action. After Judge Marsh of this court had entered an order to show cause returnable on August 2, 1961, the petition was dismissed without prejudice for failure on the part of the relator to exhaust state remedies. On September 1, 1961, the relator filed a petition for rehearing in the Butler County Court, and this petition was denied on September 14, 1961. The relator again filed for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania on October 31, 1961 at Civil Action No. 61-669. Again, Judge Marsh of this court dismissed the petition for failure on the part of the relator to exhaust state remedies. The relator filed an appeal on December 12, 1961 to the Supreme Court of Pennsylvania, Commonwealth ex rel. Hawryliak v. Maroney, 407 Pa. 27, 180 A.2d 243 and that court affirmed the lower court's order on April 17, 1962. On May 10, 1962, the relator filed for certiorari in the United States Supreme Court and on October 18, 1962, certiorari was denied. Hawryliak v. Maroney, 371 U.S. 836, 83 S. Ct. 61, 9 L. Ed. 2d 72. The relator again filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania on October 17, 1962 at Miscellaneous No. 3043 and that petition was dismissed on October 22, 1962 by Judge Dumbauld of this court. However, on October 24, 1962, the relator filed a petition for a rehearing and that was granted and a rule to show cause was issued, but the petition was denied on November 27, 1962. On November 29, 1962, the relator filed a petition for a certificate of probable cause in the United States District Court for the Western District of Pennsylvania, and this petition was denied on December 4, 1962. On December 14, 1962, the relator filed for allowance of an appeal or for a certificate of probable cause to the Court of Appeals for the Third Circuit. On January 11, 1963, the petition was denied. On February 4, 1963, the relator filed for certiorari in the United States Supreme Court and it was denied on October 14, 1963, Hawryliak v. Pennsylvania, 375 U.S. 839, 84 S. Ct. 85, 11 L. Ed. 2d 67.
The relator here makes a number of assertions and complains on the basis of Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), that a federal court must grant an evidentiary hearing to a habeas corpus applicant where under the following circumstances:
(a) the merits of the factual dispute were not resolved in the state hearing;
(b) the state factual determination was not fairly supported by the record as a whole;
(c) the fact finding procedure employed by the state court was not adequate to afford a full and fair hearing;
(d) the material facts were not adequately developed at the state court hearing; and
(e) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
A petition for a writ of habeas corpus is entitled to consideration, but it must in itself present sufficient facts which give it weight in order to entitle it to the issuance of a writ. From the record it appears that a member of this District Court has already considered the issues or contentions as raised now by the relator. It is obvious that everything that is here raised has been raised previously and considered. It would appear that in none of these is there any basis for the calling of an evidentiary hearing except possibly in one instance which I now discuss.
The relator stated that he was given barbiturates during the trial of the case, and that these 'impaired his senses to such an extent that he could not comprehend the seriousness of a murder trial and thus properly aid in his defense'. This, alone, may ordinarily have required a hearing by a District Court if there were nothing more, but the record discloses other matters which a District Court should carefully consider in relation to this averment as made by the relator.
In the first place, the petitioner had two attorneys at his trial, Leo M. Stepanian of Butler County, court appointed, and Benjamin Haseltine of Allegheny County and privately retained. It is significant that at no time had either one of these attorneys noticed anything wrong with the mental condition of the relator during the course of the trial.
It had eventually become a matter of knowledge that aspirin and phenobarbital tablets had been distributed in the Butler County jail, to the prisoners, without a doctor's prescription, and that some prisoners accumulated these for their own purposes. This vicious practice was discovered during the trial of another case by Judge Shumaker of the Butler County Court and he quickly eliminated the practice. In fact Judge Shumaker in ...