rights. Relator asserts that his petition was denied by that state court on May 25, 1964. Subsequently, relator asserts that two petitions to the Supreme Court of Pennsylvania for 'declaratory judgment' raising the same allegations as are asserted in the petition before this court, were returned to him by the Prothonotary of the Supreme Court 'for the reason that the Supreme Court of Pennsylvania does not render declaratory judgments. * * *'
While it still does not affirmatively appear that relator has properly exhausted his state remedies, no useful purpose will be served by permitting relator to burden the courts of Pennsylvania and this District with more petitions raising the same allegations as are raised in this petition, particularly since it is clear that relator's allegations are without any constitutional merit. Accordingly, the court will consider relator's petition on the merits.
From an examination of the petitions filed in this court, it appears that relator in 1959 was tried and convicted of the crime of conspiracy, larceny and receiving stolen goods. He was sentenced to a maximum prison term of five years, but in 1960 was released on parole. Relator admits that while on parole he committed another crime within this Commonwealth for which he was convicted and sentenced on October 4, 1963 to a prison term of from five months to 23 months. Subsequently, it appears that the Parole Board executed the revocation of parole which relator complains of in this petition.
Relator's allegation that Section 21.1 of the Pennsylvania Board of Parole Act, 61 P.S. § 331.21a, is an unconstitutional bill of attainder is clearly without merit. The Act does not authorize punishment without a judicial trial. Relator's present incarceration is in execution of the original sentence of the court imposed in 1959 after judicial trial which sentence was only provisionally suspended by relator's parole. See Story v. Rives, 68 App.D.C. 325, 97 F.2d 182 (1938), cert. denied 305 U.S. 595, 59 S. Ct. 71, 83 L. Ed. 377 (1938).
Likewise the application of the Pennsylvania Board of Parole Act to a parole violator such as relator does not place him in double jeopardy. Relator has not been tried or punished twice for the same offense. He was tried and sentenced in 1959 to a maximum imprisonment of five years. By the act of parole revocation he is required to serve only his full five year sentence. The fact that relator must serve his maximum sentence rather than some shortened period of incarceration results from his breach of the terms of his conditional release from prison; the parole revocation is not an imposition of an additional penalty for relator's original crime. See Howard v. United States, 274 F.2d 100, 102 (8th Cir.1960) cert. denied 363 U.S. 832, 80 S. Ct. 1604, 4 L. Ed. 2d 1525 (1960); Woods v. Steiner, 207 F.Supp. 945 (D.Md.1962); Van Buskirk v. Wilkinson, 216 F.2d 735 (9th Cir.1954).
Finally, there is no merit in relator's contention that the Pennsylvania Board of Parole Act is violative of the equal protection or due process clauses of the Constitution.
Since relator's allegations with regard to the application of the Pennsylvania Board of Parole Act do not, on their face and in the light of settled case law, present any substantial constitutional question, there is no necessity to convene a three-judge court under 28 U.S.C.A. 2281 et seq. Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933); Bell v. Waterfront Commission of New York Harbor, 279 F.2d 853 (2d Cir.1960).
And now, this 29th day of September, 1964, the petitions of Henry N. Horne for the appointment of counsel and for a writ of habeas corpus are denied.