UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA
May 5, 1964
BERKS COUNTY COURT
The opinion of the court was delivered by: BODY
The relator in this application for a writ of habeas corpus was held in custody pursuant to a sentence imposed by Judge Albert S. Readinger of the Court of Common Pleas of Berks County, Pennsylvania. The petition raises the omnipresent issue of exhaustion of state remedies, 28 U.S.C.A. § 2254.
On March 7, 1962 petitioner was arrested inside a taproom into which he had forced an entry. At the arraignment on June 5, 1962 he pleaded guilty to charges of burglary and larceny. On June 11, 1962 relator was sentenced to serve a term of not less than two (2) years nor more than five (5) years.
A petition for a writ of habeas corpus was filed with the Court of Common Pleas of Berks County, which was denied on April 17, 1963. Relator alleged that he was not represented by counsel at the time of his arraignment or at the time of his sentencing, and that he was not permitted to speak on his own behalf on these occasions. An appeal was filed with the Superior Court of Pennsylvania where the case was argued and thereafter decided on December 12, 1963 adversely to petitioner. Commonwealth ex rel. Uhler v. Myers, 202 Pa.Super.Ct. 398, 91 N.E.2d 597. As of this date the Supreme Court of Pennsylvania has been given no opportunity to consider the case of the petitioner.
Consequently, this Court cannot entertain or dispose of this petition until there has been an exhaustion of the remedies available in the state courts. United States ex rel. Drew v. Myers, 327 F.2d 174 (3d Cir. Jan. 23, 1964). The doctrine of comity between courts dictates that this Court should defer action until the Pennsylvania Supreme Court be given the opportunity to pass thereon. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
And now, this fifth day of May, 1964, in accordance with the foregoing Opinion, it is ordered that the petition of Joseph Uhler for a writ of habeas corpus be and the same is hereby denied without prejudice.
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