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June 30, 1965

A. C. CAVELL, Superintendent, State Correctional Institution, Bellefonte, Pa., Respondent (two cases)

The opinion of the court was delivered by: SHERIDAN

 Petitioner, an inmate at the State Correctional Institution at Rockview, Bellefonte, Pennsylvania, filed two petitions for a writ of habeas corpus, which have been consolidated for disposition. They question the legality of petitioner's confinement under a sentence of life imprisonment for the 1956 murder of one Juan C. Otero.

 The first petition, filed to No. 590 Habeas Corpus, raised several issues, but there was a misunderstanding on which issues were to be considered, and the hearing was limited to the voluntariness of certain statements made to the police prior to trial. The second petition, filed to No. 630 Habeas Corpus, covered the other issues raised by the first petition. A separate hearing was held on this petition.


 1. No. 590 Habeas Corpus: Petitioner alleges that the voluntariness of the statements, while not specifically set forth, was necessarily raised in the state courts as a part of other issues before the Court of Common Pleas of Montgomery County in the second of two state court petitions for a writ of habeas corpus, filed to No. 63-8396. He cites page 2, paragraph 4, of that petition:

 The state courts did not pass on the issue of the voluntariness. The Commonwealth contends that the only reasonable interpretation of the petition is that petitioner was not given a prompt preliminary hearing, and that the issue of voluntariness was not raised in the state courts.

 Section 2254, Title 28 U.S.C.A. provides that a federal court shall not grant a writ of habeas corpus unless it appears that the applicant has exhausted the remedies available in the courts of the state, and state remedies are not deemed exhausted if an applicant has the right under the law of the state to raise, by any available procedure, the question presented. See United States ex rel. Campbell v. Rundle, 3 Cir. 1964, 327 F.2d 153.

 The operative facts in the state court petition are not sufficiently clear to have raised voluntariness. There is no mention of a statement in the above quoted paragraph. Even if there were allegations of a long period of time between arrest and the preliminary hearing, of questioning, and that a statement was made, the court would not be apprised of this issue. The degree to which an issue has been presented before it will be deemed to have been raised and state remedies with respect thereto exhausted is necessarily a case-by-case determination. In United States ex rel. Campbell v. Rundle, supra, at page 164, the court said: "[It] can be asserted perhaps with some plausibility, that the issue of probable cause was not clearly before the Superior Court on the record presented. * * *" In United States ex rel. Berkery v. Rundle, E.D.Pa.1964, 226 F. Supp. 579, on a motion in the state court for a new trial on a burglary charge tried without a jury, the relator questioned whether certain information which identified him with the crime had come to the judge's knowledge erroneously. The Superior Court, 200 Pa.Super. 626, 190 A.2d 572, affirmed the denial of a new trial by the lower court. In a petition for allocatur to the Supreme Court of Pennsylvania, the relator raised the question of whether the trial was so fundamentally unfair as to violate the fourteenth amendment. The petition for allocatur was denied. No habeas corpus action was filed in the state courts. The district court held that this question, in constitutional context, clearly was not presented to or passed upon by the Superior Court.

"I am convinced that the state courts of Pennsylvania have not had an opportunity to review and pass upon the constitutional impact of these substantive questions. The alleged error was presented to the Superior Court in the narrow framework of an ordinary motion for a new trial; its constitutional context was never delineated. Under this circumstance, the denial of the petition for allocatur adds nothing to relator's petition. It does not mean that the Supreme Court passed upon the constitutional questions raised there for the first time. * * *"

 The voluntariness of the petitioner's statement was not brought to the attention of the state courts, which should have an opportunity to consider and pass upon it. The petition in No. 590 Habeas Corpus will be denied.

 2. No. 630 Habeas Corpus: The petition in No. 590 Habeas Corpus, filed by petitioner in propria persona, alleged petitioner was not represented by counsel at his preliminary hearing, an illegal search and seizure, and that petitioner was held 32 hours before given a preliminary hearing. In the original petition this latter issue, now the subject of No. 590 Habeas Corpus, was presented from the standpoint that the mere delay in providing the hearing was unconstitutional. In No. 590 and in No. 630 the question of mere delay in the preliminary hearing has been abandoned. The issues of illegal search and seizure and absence of counsel at the preliminary hearing have been presented to the Pennsylvania courts. See Commonwealth ex rel. Whiting v. Rundle, 1964, 414 Pa. 17, 198 A.2d 568, State remedies with respect to these issues, therefore, have been exhausted.


 The facts preceding petitioner's arrest are in the opinion of the Pennsylvania Supreme Court denying his motions for a new trial and in arrest of judgment. Commonwealth v. Whiting, 1963, 409 Pa. 492, 187 A.2d 563. Juan Otero operated a tailor shop at 56 East Spring Avenue, Ardmore, Pennsylvania, and lived in a small connecting apartment in the rear. Shortly after 9:15 p.m. on June 14, 1956, Mrs. Isabel Strickland, who lived in an apartment above, heard sounds of a quarrel, scuffling and screams emanating from the apartment connected with the tailor shop below. She went to her bedroom window overlooking a rear entrance leading from the tailor shop premises to an alley, and saw a man, whom she did not recognize, start out of the Otero apartment and then immediately re-enter. It was dark and she could not see his face. Within seconds, the same individual came out again. He was dressed in a light "T" shirt, dark trousers, light baseball cap, and carried a paper clothing bag. Mrs. Strickland and neighbors hurried to the Otero premises and saw Juan Otero lying on the floor of the kitchen in a pool of blood. No ...

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