The opinion of the court was delivered by: DAVIS
JOHN MORGAN DAVIS, District Judge.
In 1965, over twelve years later, a petition for a writ of habeas corpus was filed with the Court of Common Pleas, Philadelphia County.
This petition was dismissed without prejudice on April 18, 1966, with leave to refile on the proper form, in accordance with the Pennsylvania Post Conviction Hearing Act.
The relator complied, and another petition was filed on May 5, 1966, in which he raised the issues to be discussed herein.
On May 6, 1966 a rule was entered upon the Commonwealth to show cause why a hearing should not be granted. The Court then appointed counsel on July 15, 1966. A rather surprising event then transpired on January 20, 1967, at which time an ex parte hearing was conducted, attended only by two prosecuting attorneys from the District Attorney's office. After having briefly heard a recitation of the allegations, the Court dismissed the petition as frivolous.
One week later, the relator's counsel requested a rehearing, or in the alternative, to be relieved from the Court appointment. An order was then entered on February 6, 1967 vacating and rescinding the January 20th order of dismissal.
As the above account reflects, there has been no definitive review of the relator's convictions, either direct or collateral, within the state judicial system. Initially, we must therefore consider whether the state remedial procedures have been exhausted.
The Federal Habeas Corpus Act states that a petition shall not be granted:
[Unless] it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
It is well established that the purpose of the exhaustion doctrine is to permit the state courts to correct any errors which may have crept into their criminal process without interference from outside sources.
In addition, deference to the state has resulted from the traditional recognition of sovereignty which each State enjoys concurrent with the United States. But where the prosecution of collateral review becomes enmeshed in a net of procedural barriers and unexplained delay, preservation of the remedy as an effective safeguard of personal rights then becomes the more significant consideration. In construing the application of what is presently section 2254 of the Act, Justice Rutledge in Marino v. Ragen, 332 U.S. 561, 564, 68 S. Ct. 240, 242, 92 L. Ed. 170 (1947) in a concurring opinion, stated:
* * * [It] would be nothing less than abdication of our constitutional duty and function to rebuff petitioners with this mechanical formula [of failure to exhaust state remedies] whenever it may become clear that the alleged state remedy is nothing but a procedural morass offering no substantial hope of relief.
Again, in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), the problem of procedural hurdles in a State judicial system was analyzed in a manner consistent with the philosophy of Marino.6
Since over two years of unexplained delay has been encountered by the relator in attempting to obtain collateral review with no apparent success, his state remedies have been exhausted for the purposes of this petition. An examination can therefore be commenced into the merits of his cause. The relator has raised eight allegations of error for which relief is sought.
After his arrest, it is alleged that the police failed to advise the relator of his right to remain silent, and of his right to counsel.
The arrest at issue transpired on August 29, 1953, over 10 years before the prophylactic rules regarding the right to counsel and self incrimination were promulgated 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. ...