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March 25, 1966

UNITED STATES of America ex rel. Joseph F. KUHN, Petitioner,
H. E. RUSSELL, Supt., State Correctional Institution, Huntingdon, Pa., and Pennsylvania Board of Parole, Harrisburg, Pa., Respondents

The opinion of the court was delivered by: FOLLMER

FOLLMER, District Judge.

 Joseph F. Kuhn, presently a prisoner at the State Correctional Institution, Huntingdon, Pennsylvania, filed, in forma pauperis, a Petition for a Writ of Habeas Corpus. A Rule to Show Cause was issued; an Answer was filed by the Respondent, H. E. Russell, Superintendent, State Correctional Institution, Huntingdon, Pa., and a Traverse was filed by the petitioner. A hearing was held at which petitioner testified at length. A transcript of the record of the Bucks County proceedings at which time he was sentenced on his plea of guilty to four indictments and when he was represented by his own personally selected attorney, has been carefully reviewed.

 Petitioner claims that he was held about four days after his arrest without being given a preliminary hearing, that although he requested an attorney he was provided with none during the interrogating period, that he was coerced into giving a written confession without an attorney being present.

 The transcript of the Bucks County proceedings and the Answer filed by Respondent, the facts of which are not denied, disclose that on March 17, 1961 petitioner, accompanied by his personally selected attorney, appeared before the Court of Oyer and Terminer and General Jail Delivery of Bucks County and entered pleas of guilty to four indictments. On the four indictments he was sentenced to from two to ten years, effective December 13, 1960. The minimum expiration date on this sentence was December 13, 1962, and the maximum expiration date is December 13, 1970. He was paroled December 13, 1963.

 At the hearing when sentence was pronounced the testimony of the investigating officer was taken as was that of petitioner. The statement which petitioner claims was obtained from him by coercion was introduced at the time of sentence with no objection having been interposed by petitioner's attorney.

 A habeas corpus proceeding was held in Montgomery County, Pennsylvania, on August 31, 1964, involving a sentence of one and one-half to three years imposed on petitioner February 8, 1962, following conviction on trial before a jury. This sentence was made consecutive to the Bucks County sentence. At that hearing, petitioner's personally selected attorney (who appeared with him in Bucks County at the time of the imposition of that sentence) appeared and testified. This testimony went, in part, as follows:


(Transcript of Habeas Corpus Hearing, Montgomery County, No. 64-8277, Pages 61-62)


"A * * * I'm not positive what day he contacted me. However, my notes show that he had indicated that he had been arrested on December 8, that he had given signed statements to the police and that he hadn't contacted me until after the hearing.


Q The signed statements to which you referred had to do so far as you know only with the crimes to which he was pleading guilty in Bucks County?


A Yes.


Q Having made the decision with your client to plead guilty, you were not then particularly concerned, or at least you didn't discuss with your client any crimes that he might be charged with sometime later?


A That's right. He did tell me of crimes he had been charged with in the past, but I have no notes with respect to anything outside of Bucks County."

 And further: (Page 64)




Q Counsellor, did Mr. Kuhn complain to you that he was denied access to counsel?


A At this time I can't recall. I use an association memory system. I don't know what anyone else does. I didn't even know Mr. Kuhn when I walked in this morning. The more you hear and the more you see, the more you remember; at least that's what I do. My vague recollection is that he did complain about it and I said something like 'Well, this is fine, but you can't appeal on it. I can't get the case thrown out because of it.' That was it. At least that was my understanding of the law in 1960 and I didn't waste much time on it because I understood the law to be that this was not a violation of the criminal's rights."

 The record clearly indicates that petitioner's attorney at no time made any objection to the consideration of the allegedly coerced statement or of the fact that at the time the statement was taken petitioner was without counsel.

 It is perfectly apparent from the attorney's testimony in the Montgomery County proceedings that he was completely in error in his understanding of the existing law with relation to the consideration by the Court of statements made by accused without the benefit of counsel.

 I do not agree with the Pennsylvania State Courts which held that having been paroled on the Bucks County sentence, petitioner was not in custody by reason of that sentence and accordingly the matter of habeas corpus before that Court was moot. A person on parole is "in custody" within the meaning of 28 U.S.C. ยง 2241(c)(3). United States of America ex rel. Reina v. New York State Division of Parole, 238 F. Supp. 263 (S.D.N.Y.1965); Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 (1963).

 It is not denied that a statement was taken from petitioner before trial when he was without the benefit of counsel nor that that statement was considered by the Court at the time of sentence under the guilty plea with no objection on the part of petitioner's attorney and that failure of petitioner's counsel to object was due to his incorrect understanding of the then existing law.

  The petition for a writ of habeas corpus will be granted, but the Commonwealth will be given opportunity either to appeal from this grant of the writ or to retry petitioner. Execution of the writ will, therefore, be stayed for a period of thirty (30) days and if at the end of that period of time the Commonwealth has neither appealed nor initiated proceedings to retry petitioner, the writ will be executed and the petitioner will be released. United States ex rel. Manduchi v. Tracy, E.D.Pa.1964, 233 F. Supp. 423, 428.


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