The opinion of the court was delivered by: GOURLEY
In this state habeas corpus proceeding, two issues are presented to the Court:
1. Has petitioner exhausted his remedies in the state courts? The answer is 'yes.'
2. Were the guilty pleas on which petitioner's sentences are based constitutionally valid? The answer is 'no.'
Petitioner is attempting to set aside a conviction for burglary, for which he was sentenced to not less than ten (10) years and not more than twenty (20) years, and a conviction for assault with intent to kill, (hereinafter sometimes referred to as 'assault') for which he was sentenced to not less than two (2) years and not more than seven (7) years, the latter sentence to commence at the expiration of the first. Each conviction was based upon a separate indictment and was entered after a plea of guilty.
II. EXHAUSTION OF STATE REMEDIES
In 1954, petitioner filed a petition for writ of habeas corpus, pro se, in the state courts wherein he attacked the sentence based on the burglary conviction. While the denial of his petition was appealed to the Pennsylvania Superior Court, no further appeal was taken to the Pennsylvania Supreme Court. The Superior Court took the unusual step of ordering the brief of petitioner stricken from the file of said Court. Petitioner remained in custody until 1963, when he was paroled as a result of sentence having been commuted by the Pennsylvania Pardons Board. On March 7, 1964, a detainer was lodged against petitioner as a parole violator. Petitioner remained in custody on the Parole Board detainer until he was released on bond by an Order of this Court on April 30, 1964. No hearing under the applicable Pennsylvania procedures has been accorded him to date.
B. Exhaustion on the Basis of the Contentions Raised in the State Courts.
When the unusual action of the Pennsylvania Superior Court in ordering petitioner's brief stricken from the file of said Court is considered in conjunction with the then status of the petitioner as a state prisoner unaided by counsel, it appears to the Court that petitioner is excused from not having filed an appeal at that time and that, under these extraordinary circumstances, petitioner must be deemed to have exhausted his state remedies.
Furthermore, since the time period for filing an appeal to the Pennsylvania Supreme Court from the decision of the Superior Court § relative to the 1954 petition for habeas corpus obviously has expired, it appears to the Court that the prior state proceeding might well be deemed res judicata in the state system, even though habeas corpus is not normally subject to the usual doctrines of res judicata. Assuming that the prior determinations in the state courts are res judicata in the state system, then there are, in effect, no remedies remaining in the state court system and, therefore, exhaustion of state remedies exists for this reason as to the sentence based on the burglary.
C. Exhaustion Independent of the Contentions Raised in the State Courts.
In addition, because of the peculiar status of a parolee under Pennsylvania law, the statutory requisites of 28 U.S.C.A. § 2254 have been met and the Court has jurisdiction to consider, independent of any exhaustion based on the 1954 habeas corpus petition, not only the sentence based on the § burglary ...