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August 8, 1967

UNITED STATES of America ex rel. Louis McCLOUD

The opinion of the court was delivered by: BODY

 BODY, District Judge.

 Relator pleaded guilty on May 1, 1947 in the Court of Quarter Sessions of Philadelphia County, Pennsylvania, to two indictments charging armed robbery. He was represented by a public defender at the time he entered these pleas. The court sentenced relator to a total term of not less than fifteen nor more than thirty-five years. Relator was released on parole from Graterford Penitentiary on May 26, 1960 but was returned to custody as a parole violator on September 18, 1961, with a detainer lodged against him by the authorities in Bucks County, Pennsylvania.

 Relator did not appeal from his original sentence. During June Term 1965 he filed a petition for a writ of habeas corpus with the Court of Common Pleas No. 3, Philadelphia, Pennsylvania. On July 14, 1965 the Honorable Alexander F. Barbieri dismissed the petition, which decision was affirmed by the Pennsylvania Superior Court. Commonwealth ex rel. McCloud v. Rundle, 207 Pa.Super. 735, 216 A.2d 103 (1966). The Supreme Court of Pennsylvania subsequently denied him leave to appeal.

 Having exhausted his available state remedies, relator filed the present petition for a writ of habeas corpus. After two hearings before this Court the parties were liberally afforded every opportunity to file briefs and to otherwise complete the record.

 Although relator has raised numerous grounds in support of his petition, the Court deems it necessary to consider only one contention - that his pleas of guilty were involuntarily induced by a fear that his allegedly coerced confession would be used against him at his trial.

 The United States Court of Appeals for the Third Circuit recently re-emphasized the approach which a district court must take when reviewing a state prissoner's claim that his plea of guilty and the confession which preceded it were coerced and his conviction therefore obtained in violation of the Due Process Clause of the Fourteenth Amendment. In United States ex rel. Collins v. Maroney, 382 F.2d 547 (3rd Cir. 1967), the Court stated in a Per Curiam Opinion:

 With regard to the first facet, it should be noted that the Commonwealth does not contend that relator waived his right to challenge the constitutional infirmity of his confession. It is the position of the Commonwealth, as will be discussed infra, that both his confession and later pleas were purely voluntary as disclosed by the full record. The District Attorney has relied upon the well-accepted doctrine that if relator's guilty pleas were voluntary then his conviction rests upon that plea and all non-jurisdictional defects are waived. United States v. Ptomey, 366 F.2d 759 (3rd Cir. 1966); United States ex rel. Maisenhelder v. Rundle, 349 F.2d 592 (3rd Cir. 1965).

 In deciding the second facet of this four-pronged issue - that is, whether the confession was, in fact, coerced - we turn to the accepted criteria for determining voluntariness. Although the Supreme Court in Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966) clearly stated that the principles enunciated in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) do not apply retroactively and are not therefore the guidelines which a district court must follow in judging a confession and plea of 1947, the Court pointed out that prisoners tried before Escobedo and Miranda may still invoke the traditional case law on coerced confessions and therefore rely upon the Court's substantive test of voluntariness. Johnson, supra, 384 U.S. at 730, 86 S. Ct. 1772.

 That substantive test of voluntariness was enunciated by the Supreme Court in Haynes v. State of Washington, 373 U.S. 503, 513, 83 S. Ct. 1336, 1343, 10 L. Ed. 2d 513 (1963) as follows:

"* * * a confession obtained by the police through the use of threats is violative of due process and * * * 'the question in each case is whether the defendant's will was overborne at the time he confessed' * * * 'In short, the true test of admissibility is that the confession is made freely, voluntarily and without compulsion or inducement of any sort' * * * And, of course, whether the confession was obtained by coercion or improper inducement can be determined only by an examination of all the attendant circumstances."

 The above test laid down by the Court in Haynes reaffirms the right of the district court to make a broad inquiry into the "totality of the circumstances" which surrounded relator's confession and subsequent pleas. Blackburn v. State of Alabama, 361 U.S. 199, 206, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960); Fikes v. State of Alabama, 352 U.S. 191, 197, 77 S. Ct. 281, 1 L. Ed. 2d 246 (1957).

 At his two federal habeas corpus hearings relator offered the following evidence on the voluntariness issue. Mr. McCloud testified that he was arrested along with several other men on or about February 10, 1947 in Philadelphia, Pennsylvania, as suspects in a wave of recent robberies. At the time of his arrest relator was nineteen years of age, immature and of very lowgrade mentality. The men were taken in police cars to the 4th and York Street police station and questioned separately about recent holdups in the northeast section of the city. Relator denied knowledge of these alleged crimes but was taken into custody about eleven o'clock that evening. At three o'clock the following morning he was taken to the Trenton and Dauphin Avenue police station where he was questioned by relays of detectives for hours without interruption. He testified that he was beaten about the ...

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