On August 1, 1963, the court again denied the petition for failure to exhaust state remedies.
In Misc. 2600, relator again asserted that he was denied effective assistance of counsel because he and his brother were represented at trial by the same attorney. He also alleged that his parole revocation and recommitment to prison was improper. In this petition, relator quoted from an order of the Court of Common Pleas of Lehigh County dated August 30, 1963 (No. 333 September Term, 1963) denying relator's habeas corpus petition. From this order, it plainly appeared that the Lehigh County Court had considered and dismissed on the merits relator's contention that he was denied effective assistance of counsel by the fact that the same attorney represented his brother and him at the trial after a request for severance had been denied. However, the order made no reference to any question being raised as to the legality of relator's parole revocation. On October 8, 1963, this court denied relator's petition without prejudice after pointing out that the state remedy of appeal from the order of the Lehigh County Court was still open to relator.
The allegations asserted in the present petition (Misc. 2687) have been outlined above. It is to be noted that no assertion of denial of effective assistance of counsel is made. Likewise relator has not seen fit to advise this court as to what efforts have been made to present his allegations with regard to the parole revocation to the state courts. However, our independent research has indicated that on November 1, 1963, an appeal from the order of the Lehigh County Court (No. 333 September Term, 1963) was filed with the Superior Court of Pennsylvania (No. 9 Oct. Term, 1964). On April 3, 1964, the Superior Court affirmed per curiam without opinion, the lower court's denial of relator's habeas corpus petition. It does not appear that any petition for allocatur has been filed with or acted upon by the Supreme Court of Pennsylvania.
From an examination of relator's petition to the Superior Court, it appears infringement before that court involved the question of effective assistance of counsel arising out of the fact that the same attorney represented relator and his brother at the trial. Although the petition brother at the trial. Although the petition Case' contains a statement referring to the parole revocation, recommitment and recomputation of the expiration date of his sentence, the balance of the petition is directed to argument on the dual representation issue. Moreover, the order of the Lehigh County Court which was the basis of the appeal makes no mention of the parole revocation issue but rather states that the habeas corpus petition before it was 'based upon refusal of severance * * * and upon prejudice to relator because he and his brother, Stephen, were represented by the same counsel * * *.'
On the present state of the record therefore, the court is unable to say that relator's allegations that his constitutional rights have been infringed by the revocation of his parole and recommitment to prison has ever been considered by the state courts and it appears that this issue was never presented to the state courts.
Although relator's allegations in this petition appear to be without merit, the court out of respect for state processes deems it proper that the issues raised in this petition first be presented to the state courts. Accordingly, the petition will be denied without prejudice to the right of relator to reassert his claims in this court when he can demonstrate that he has properly exhausted his state remedies.