UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 19, 1965
CLARENCE C. FRACE, APPELLANT,
HARRY E. RUSSELL, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION, HUNTINGDON, PENNSYLVANIA
McLaughlin, Forman and Ganey, Circuit Judges.
FORMAN, Circuit Judge
Clarence C. Frace, an inmate of the State Correctional Institution, Huntingdon, Pennsylvania, sets forth in substance the following allegations in his application for a Writ of Habeas Corpus addressed to the United States District Court for the Middle District of Pennsylvania.
1. The Clerk of the Common Pleas Court of Monroe County, Stroudsburg, Pennsylvania, has failed to comply with his request of November 21, 1963 that he be sent all the records pertaining to his case.
2. On December 20, 1963, he was denied representation of counsel and a hearing by the Common Pleas Court of Monroe County, Pennsylvania, on his petition for a Writ of Habeas Corpus.
3. On January 14, 1964, he entered his application to the Superior Court of Pennsylvania for an appeal from the said order of the Common Pleas Court of Monroe County, which appeal was not scheduled for hearing until March 1, 1965. Representation of counsel was also requested at this time.
4. The delay in setting the said appeal for hearing and the failure to grant counsel were violative of his federal constitutional rights.
5. The Judge of the United States District Court for the Middle District of Pennsylvania with whom he had corresponded prior to filing his petition in that Court was prejudiced against him and should have been disqualified from hearing his federal habeas corpus application.
The District Court filed a memorandum on December 1, 1964*fn* in which it characterized the application of Mr. Frace as one for mandamus to "intercede * * * in that he be granted a hearing" in the state court. By order of the same date it denied the application.
On December 31, 1964, Mr. Frace filed in this court an affidavit in forma pauperis and a paper entitled "Brief for Appeal." In the latter he alleged in substance the same grievances submitted in his application to the United States District Court for the Middle District of Pennsylvania and requested that this court issue a Writ of Habeas Corpus.
We shall treat his "Brief for Appeal" as a timely notice of appeal from the order of the District Court of December 1, 1964 denying his application for a Writ of Habeas Corpus and the Clerk of this court shall transmit it to the Clerk of the United States District Court for the Middle District of Pennsylvania for receiving and filing as of December 31, 1964. We shall also treat it as an application for a certificate of probable cause as required by 28 U.S.C. § 2253 which is granted. His "Affidavit in Forma Pauperis" will be treated as an application to appeal in forma pauperis which is likewise granted.
Mr. Frace's petition to the District Court was dated November 18, 1964. It was denied on December 1, 1964. The time between the filing on January 14, 1964 of his petition for appeal from the denial of his application for habeas corpus by the Common Pleas Court of Monroe County, and the date fixed by the Superior Court for hearing the appeal - March 1, 1965 - though unusually long, was, at the date of the submission of this case merely six weeks away. Thus, the availability of a state forum in which his constitutional grievances may be raised is not now extraordinarily distant. Nor has Mr. Frace alleged any other facts from which it may be adjudged that he is excused from exhausting his post-conviction remedies provided by the laws of the State of Pennsylvania.
We need not express an opinion on the propriety of the District Court in regarding the petition for habeas corpus as an application for mandamus. It is here sufficient that it did not err in denying the application before it.
The accusations of prejudice against Judge Follmer are wholly without support.
The denial by the United States District Court for the Middle District of Pennsylvania of the application of Clarence C. Frace for a Writ of Habeas Corpus in its order of December 1, 1964, is affirmed.