The opinion of the court was delivered by: LORD, III
JOSEPH S. LORD, III, District Judge.
On April 15, 1948, relator was sentenced by the Court of Quarter Sessions of Philadelphia County to a term of ten to twenty years upon conviction of burglary, larceny and receiving stolen goods. He was twice paroled, and for crimes committed while on parole, he was sentenced to three to eight years on March 6, 1964, and to one to two years on May 28, 1964. All the sentences were to run consecutively. On February 4, 1966, we granted relator's petition for habeas corpus as to the 1948 sentence. United States ex rel. Watson v. Myers, 250 F. Supp. 292 (E.D.Pa.1966).
Relator now complains that as a matter of constitutional right he is entitled to have the sixteen and one-half years served on the illegal 1948 sentence credited against the unimpeached sentences of March 6, 1964 (three to eight years) and May 28, 1964 (one to two years). Obviously, if full credit were given, Watson would be entitled to immediate release from custody of any kind.
For the reasons which appear below, we have concluded that the writ must be denied.
There is no definitive allegation in relator's petition to the effect that he has exhausted available state remedies. On the prescribed form which our court provides for the filing of habeas corpus petitions, there appears the inquiry:
"13. Prior to this petition have you filed * * * any petition in a state court for habeas corpus or any other post-conviction remedy?"
Watson has answered, "No." There are admittedly other vague indications in the petition that the relator did attempt to exhaust state remedies. But it would be foolish for us to entertain the petition on a reconstruction of largely incoherent allegations in the petition when simple, direct means have been afforded relator to set forth his state court efforts to obtain relief.
Therefore, we would be inclined in the first instance to deny the writ for failure to exhaust state remedies.
There is, however, no reason to abstain from considering the petition at this time because we have found it to be completely lacking in merit. See United States ex rel. Drew v. Myers, 327 F.2d 174, 183 (C.A.3, 1964), cert. denied, 379 U.S. 847, 85 S. Ct. 88, 13 L. Ed. 2d 52 (1964). While we are somewhat sympathetic to relator's situation, we cannot conceive of a constitutionally mandated system of accumulated prison credits. Other courts have concurred in our incredulity: Tucker v. Peyton, 357 F.2d 115, 118 (C.A.4, 1966); Jones v. Ellsworth, 240 F. Supp. 246 (Mont.1965), aff'd, 353 F.2d 209 (C.A.9, 1965); United States ex rel. Jones v. Nash, 264 F.2d 610 (C.A.8, 1959), cert. denied, 360 U.S. 936, 79 S. Ct. 1459, 3 L. Ed. 2d 1548 (1959). Such a requirement of credit for time served under vacated sentences would enable recidivists to obtain release or to avoid incarceration altogether by the simple device of pleading a prior invalid imprisonment. Even in those cases where a sentence is vacated and the relator is re-tried for the very same offense, there is no constitutional requirement of credit for the time already served. See United States ex rel. Jones v. Nash, supra, 264 F.2d at 613; Jones v. Ellsworth, supra; but see Patton v. State of North Carolina, 256 F. Supp. 225 (W.D.N.C.1966).
Quite obviously, the many years Watson spent in custody failed to achieve the desired corrective effect on whatever criminal disposition he may have had. However unfortunate and even tragic relator's confinement under the illegal 1948 sentence might have been, it cannot excuse his later criminal conduct. A sentencing court or parole board may want to consider the fact of Watson's long confinement under the vacated judgment as bearing on the severity of sanctions to be imposed for the later offenses. But our standards of collateral review do not permit interference with such discretionary state ...