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UNITED STATES EX REL. DAVIS v. MYERS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


October 28, 1964

UNITED STATES of America ex rel. Robert R. DAVIS
v.
David N. MYERS, Superintendent State Correctional Institution, Graterford, Pennsylvania

The opinion of the court was delivered by: BODY

Petitioner contends that he is unlawfully confined on a sentence of not less than ten years or more than twenty years for murder in the second degree, and not less than two and one-half years and not more than ten years for arson on a sentence imposed on January 25, 1963 by Judge Raymond Pace Alexander.

The petitioner avers that he had two defense counsel, appointed by the court, who defended him; that after two days of a non-jury trial he pleaded guilty to murder generally; and that sometime thereafter he was found guilty of murder in the second degree and sentenced. At the same trial he was found guilty of arson. The facts recited are few but sufficiently informative. In addition it is averred that '* * * petitioner's intent was only to burn his personal clothing which was in a room where he did not know a man was sleeping. * * *'

 Among other allegations, petitioner avers that his defense counsel failed to protect his rights against the unlawful proceedings, and failed to exercise the right of direct appeal after trial in his case.

 Petitioner further avers that he filed a petition for a writ of habeas corpus in the Court of Common Pleas of Philadelphia County, Pennsylvania, which had not been disposed of by the said court.

 In view of the last averment by the petitioner, this case is improperly in this Court for the petitioner's state remedies have not been exhausted. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). Accordingly, the prayer of the petition to issue a writ of habeas corpus is not granted, and the petition is dismissed without prejudice.

19641028

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