whereupon the District Attorney again indicated his intention to proceed against relator as a second offender. The District Attorney noted for the record that defense counsel had received notice several days prior to trial that the Commonwealth intended to proceed against relator as a second offender if he were found guilty of murder at the trial. Defense counsel acknowledged the truth of this statement in open court and stated that he did not need any additional time to prepare a defense to the second offender charge. An amended bill of indictment indicating that relator had once before in October of 1948 been convicted in a Philadelphia court of murder of the second degree was introduced into evidence. A Clerk of Quarter Sessions Court was called to verify the fact that a person named James Whiting was in fact found guilty of murder of the second degree in October of 1948 and a witness at the 1948 trial testified that relator was in fact the same James Whiting who was convicted of murder of the second degree in 1948. Relator was given an opportunity to speak and in fact admitted that he had been convicted of murder of the second degree in October of 1948. Subsequently, the trial judge imposed the life imprisonment sentence which the relator attacks in this petition.
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 appointment of counsel is denied.