FOLLMER, District Judge.
Thomas H. Davis, a prisoner at the State Correctional Institution, Philadelphia, Pennsylvania, filed a petition for writ of habeas corpus, in forma pauperis, in this court on January 27, 1967. By Order dated that same day a Rule to Show Cause was issued, and an answer was filed by respondent. On March 22, 1967, the District Attorney of Dauphin County, Pennsylvania, moved for a continuance on the grounds that petitioner then had an appeal pending in the Pennsylvania Superior Court. By Order dated March 31, 1967, the continuance was granted and further proceedings were stayed until such time as petitioner should inform this court that he had exhausted all available state remedies. Petitioner subsequently did so by a "Motion for Consideration" filed September 12, 1967. By Order dated September 21, 1967, the District Attorney of Dauphin County, Pennsylvania, was directed to file an answer. This has been done and the matter is now before the court for consideration.
The basic issue presented by petitioner is whether harsher punishment may constitutionally be imposed at a second trial under the circumstances of his case, citing Patton v. State of North Carolina, 256 F. Supp. 225 (W.D.N.C.1966). The Third Circuit considered this precise issue in the case of United States ex rel. Starner v. Russell, 378 F.2d 808 (1967). In rejecting the rationale of the Patton case, it held:
When [the petitioner] appeared and entered a plea of not guilty at the second trial, the slate had been wiped clean and it was an entirely new case and bore no relationship whatsoever to his previous plea of guilty which he had entered.