Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


May 8, 1967

UNITED STATES of America ex rel. Roy E. HARBAUGH, Petitioner,

The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 Roy E. Harbaugh, a state prisoner, has applied for a writ of habeas corpus. He sets forth as reasons for the writ: (1) denial of representation by competent counsel; (2) unavailability of exculpatory evidence that has subsequently become available and which would have affected the outcome of the trial if it had been introduced; (3) the sentence imposed for armed robbery by the Court of Quarter Sessions instead of the Court of Oyer & Terminer was void; and (4) violation of his right to due process and equal protection of the law under the Fourteenth Amendment. In our opinion the petition for the writ should be denied.

 The Commonwealth admits that relator has exhausted his state remedies. The District Attorney has supplied the records pertaining to relator's conviction in the Court of Quarter Sessions of McKean County, Pennsylvania, at No. 22 October Sessions, 1946, and of the subsequent proceedings in the state courts.

 From the records, it appears that relator pleaded guilty to armed robbery of Holley Hotel in Bradford, Pennsylvania, and was sentenced to imprisonment for a minimum of 5 years and a maximum of 15 years, effective July 19, 1946. Apparently, there is no transcript of the sentence hearing. The return of the Superintendent of the State Correctional Institution where relator is presently confined and the records disclose that he was paroled on February 15, 1952; on June 24, 1954, he was sentenced to serve from 10 to 25 years in the State Penitentiary at Michigan City, Indiana, on a charge of robbery; *fn1" that upon his release from that sentence on February 24, 1961, the Pennsylvania Board of Parole took him into custody as a convicted parole violator; that because of his conviction of a new crime while on parole, the time he was at liberty, i.e., 9 years, 5 months and 4 days, was forfeited pursuant to the law of Pennsylvania; *fn2" that his maximum term now expires on July 28, 1970.

 Relator has presented three unsuccessful petitions for the writ in the Court of Common Pleas of McKean County, Pennsylvania. *fn3" He has presented one unsuccessful petition for the writ in this court at Civil Action No. 64-1005. *fn4" At Civil Action No. 65-904, he presented a petition for removal of cause and declaratory judgment which was denied by Judge Rosenberg. He brought a Civil Rights action in this court at Miscellaneous No. 3723 against a judge and other officials of McKean County, which was dismissed by Chief Judge Gourley. *fn5" All of the foregoing actions encompassed complaints relating to his conviction in 1946, including some of those listed in the petition here under consideration.

 Relator made no complaints relative to his conviction until after he was recommitted for parole violation. He has never denied his guilt. He has never asserted his admissions of guilt were other than voluntary. His first petition for the writ was presented to Judge Charles G. Hubbard, the sentencing Judge, at No. 189 December Term, 1963. In that petition, as he does here, the relator alleged as a ground for relief inadequate representation by counsel. Judge Hubbard in dismissing the petition states in his opinion:

"At the time of his [relator's] sentence, he was represented by an attorney. * * *
"Counsel who represented petitioner at the [sentencing] hearing August 8, 1946, was an attorney of capability, who had practiced law in the County of McKean for quite a number of years, and who is now holding a high judicial office [United States District Judge for the Western District of Pennsylvania]. The record does not show that any continuance was requested."

 We think this statement of fact by the sentencing Judge is equivalent to a certificate attesting to the fact that relator had the services of competent counsel at the time of his sentence. 28 U.S.C. ┬ž 2245.

 The aid which could have been rendered by a lawyer on a plea of guilty to an admitted crime is quite limited. As appears on page 2 of his petition for the writ presented to Judge Hubbard (No. 189 December Term, 1963), relator admitted that counsel was appointed for him and that he "threw himself on the mercy of the court and entered a plea of guilty." On a plea of guilty, time is relative and a brief period between appointment and sentence ordinarily would be adequate especially when, as here, it appears that the accused admitted the crime of robbery to the police *fn6" and to the alderman at his preliminary hearing, *fn7" waived indictment and pleaded guilty in open court.

 Three state judges and one federal judge have denied relator's petitions for relief on the ground that he was denied adequate assistance of counsel. Two appeals were taken to the Superior Court of Pennsylvania from the orders dismissing his state court petitions; both orders were affirmed per curiam. A certificate of probable cause was denied by the Court of Appeals. We think in the circumstances disclosed by the records, relief on this ground was properly denied and we concur in those decisions.

 Relator's second ground is without merit. No specification of the "exculpatory evidence" is stated either in his petition here or in the petition filed in the state court on June 8, 1966 under the Post Conviction Hearing Act, although in the latter proceeding he had appointed counsel to advise and represent him. Judge Walter Pierre Wells, P.J., 55th Judicial District, specially presiding, denied relief. It is not apparent how the unspecified "exculpatory evidence" could change admitted guilt to innocence. It is to be noted that the second ground is printed in the form furnished relator in 1966 to enable him to proceed under the Post Conviction Hearing Act and he has simply copied it verbatim in his petition presented to this court, again without any factual detail.

 Relator's third and fourth grounds are likewise without merit. When relator pleaded guilty and was sentenced, it does not appear that any objection was made to the jurisdiction of the Court of Quarter Sessions, and no showing is made or alleged that he was prejudiced. In United States ex rel. Hazen v. Maroney, 217 F. Supp. 328, 329 (W.D.Pa.1963), also a case from McKean County wherein the relator ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.