The opinion of the court was delivered by: GRIM
In this habeas corpus petition, relator questions the validity of his sentence to life imprisonment imposed under the provisions of the Pennsylvania Penal Code relating to convictions of a second offense of murder of the second degree. Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701.
Relator contends that his constitutional rights have been infringed because he allegedly did not receive adequate notice that he was subject to sentence as a second offender and because he allegedly did not receive a 'trial' on the second offender charge.
The requirements of due process in the case of a habitual criminal charge have been set forth in Oyler v. Boles, 368 U.S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962) where the Supreme Court said:
'Even though a habitual criminal charge does not state a separate offense, the determination of whether one is a habitual criminal is 'essentially independent' of the determination of guilt on the underlying substantive offense. * * * Thus, although the habitual criminal issue may be combined with the trial of the felony charge, 'it is a distinct issue, and it may appropriately be the subject of separate determination.' * * * Due process does not require advance notice that the trial on the substantive offense will be followed by a habitual criminal proceeding. * * * Nevertheless a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense. * * *' 368 U.S. 448, 452, 82 S. Ct. 503 (1962); See also United States ex rel. Collins v. Claudy, 204 F.2d 624 (3d Cir. 1953); United States ex rel. Swingle v. Rundle, 318 F.2d 64 (3d Cir. 1963).
Relator was represented throughout this proceeding by competent counsel and it is clear that he was afforded adequate notice and opportunity to be heard on the recidivist charge as well as all the elements of a 'trial' on the recidivist charge as required by due process.
Since the facts are not in dispute and do not set forth matters entitling relator for relief by habeas corpus, an evidentiary hearing is not necessary, 28 U.S.C.A. § 2243; Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). Likewise since the legal issue here is clear and the record uncomplicated, there is no reason for the court to exercise its discretion to appoint counsel for the relator.
It remains only to point out that the possible failure of relator to exhaust his state remedies
does not preclude this court from denying relator's petition on the ground that the allegations contained therein are without constitutional merit. As was pointed out by the Court of Appeals for the Third Circuit in a recent case:
'The general grant of jurisdiction in habeas corpus, which appears in Title 28 U.S.C. § 2241 (1958), permits denial of a petition for the Great Writ on its merits, though state remedies may not be exhausted. Manifestly, 'it is not an indignity to state processes to assert that a claim of this sort (constitutional infringement) on its face or on a full record is clearly without merit." United States ex rel. Drew v. Myers, 327 F.2d 174, 183 (3d Cir. 1964); See Petition of Thompson, 301 F.2d 659, 660 (3d Cir. 1962).
Relator's claims are clearly without merit and his petition must be denied.
And now, this 23rd day of June, 1964, the petition of James Whiting for a writ of habeas corpus and for the ...