The opinion of the court was delivered by: GRIM
In this habeas corpus petition, relator, a state prisoner, questions the constitutionality of the actions of the Pennsylvania Board of Parole in revoking his parole and ordering his return to prison.
In the petition, the following relevant facts are alleged:
1. In 1953 relator was tried and convicted on a bill of indictment charging robbery. (Bill No. 68 of April Term, 1952 -- Lehigh County). The trial judge sentenced relator to a term of imprisonment the minimum incarceration to be three and one-half years and the maximum period, seven years.
2. On December 27, 1954, relator commenced the service of this sentence. In the normal course of events, his maximum sentence would have expired on December 27, 1961.
3. On April 18, 1958, relator was released from prison on parole.
5. In pronouncing this one to two year sentence on June 20, 1961, the trial judge directed that relator's sentence would be computed from the date of his arrest and commitment to await trial, namely, February 26, 1961.
6. After serving one year of this one to two year sentence, relator was released on parole as of February 26, 1962.
7. On or about February 26, 1962, relator was recommitted to prison to serve the balance of his three and one-half to seven year sentence from which he had originally been released on parole.
Relator contends that his three and one-half to seven year sentence expired on December 27, 1961, and that consequently the Pennsylvania Board of Parole was without authority in February of 1962 to recommit him to prison although admittedly he had committed a crime and had been convicted of that crime while on parole from this three and one-half to seven year sentence. Relator contends that the Pennsylvania statute admittedly authorizing such recommitments to prison
is a bill of attainder and ex post facto law and places him in 'double jeopardy' all in violation of the constitution of the United States and the constitution of the State of Pennsylvania.
This is relator's fifth habeas corpus petition to the court. In Misc. 2384 relator alleged that he was denied a fair trial by the use of perjured testimony, the introduction of the coerced confessions of two co-conspirators, and the suppression of evidence and testimony. He also alleged that the parole revocation and reimprisonment to serve the balance of the first three and one-half to seven year sentence placed him in 'double jeopardy.' Relator stated that a habeas corpus petition to the 'local court' had been denied. On February 28, 1962, this court denied the petition for failure to exhaust state remedies, specifically the taking of an appeal from the refusal of the lower state court to grant the writ.
In Misc. 2402, relator asserted substantially the same allegations with the exception that no mention was made of the parole revocation issue. Relator alleged that 'cruel and unusual punishment' would be inflicted if he sought redress in the state courts. On May 28, 1962, this court denied the petition for failure to exhaust state remedies and directed the Clerk of the District Court to send relator a copy of this court's local rule 37.
In Misc. 2541, relator, in addition to the allegations of denial of a fair trial asserted in his two prior petitions, claimed that his constitutional rights were infringed by the fact that the same attorney represented his brother and himself at their trial. Relator asserted that there was a conflict of interest between the defense of his brother and himself, and that therefore the denial of severance by the trial court deprived him of effective assistance of counsel. No allegation was made with regard to the parole revocation. 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 ...