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UNITED STATES EX REL. SMART v. RUNDLE

December 29, 1967

UNITED STATES of America ex rel. Herbert Levi SMART H 3811, Petitioner,
v.
A. T. RUNDLE, Comm. of Penna., Respondent



The opinion of the court was delivered by: FULLAM

 FULLAM, District Judge.

 The petitioner is serving a sentence of ten to twenty years, imposed by the Court of Oyer and Terminer of Delaware County after he entered a plea of guilty to a general charge of murder, and was found guilty of murder in the second degree. His present petition for habeas corpus asserts, inter alia, that his guilty plea was invalid because not voluntarily or understandingly entered.

 The plea was entered and sentence was imposed on June 16, 1964. No appeal was taken, but in January and February of 1966, petitioner sought habeas corpus relief in the state courts, in which the above issue was squarely presented. On March 1, 1966, the Delaware County court dismissed these petitions without hearing, and this decision was upheld by the Pennsylvania Supreme Court, in an opinion filed March 14, 1967, Commonwealth ex rel. Smart v. Myers, 424 Pa. 315, 227 A.2d 831 (1967).

 It is my opinion that the relator has met the exhaustion requirement. He has presented the factual issue of the voluntariness of his guilty plea to the state tribunals, and his contentions have been rejected, on the merits, by the Supreme Court of Pennsylvania. The fact that the state courts considered the trial record adequate for determination of the factual issue, does not render their decision procedural; clearly, the issue was decided on the merits. Although the Post-Conviction Hearing Act (19 Purdon's Stat.Ann. § 1180-1 et seq.) became effective on the same day as the lower court's disposition of petitioner's state habeas corpus petition, neither the lower court nor the Supreme Court, which decided the case over one year after the effective date of the Post-Conviction Hearing Act, suggested in any way that the decision was based upon any concept that habeas corpus was not a proper vehicle for presenting the issue, nor did either court intimate that the denial was without prejudice to such post-conviction act proceeding.

 In any event, it is clear from the language of the Post-Conviction Hearing Act itself, that the petitioner does not now have any available remedy under that statute. The statute expressly provides (19 P.S. § 1180-3):

 
"To be eligible for relief under this act, a person must * * * prove the following:
 
* * *
 
"(d) That the error resulting in his conviction and sentence has not been finally litigated or waived."

 The following section (19 P.S. § 1180-4) provides:

 
"(a) For the purpose of this act, an issue is finally litigated if:
 
* * *
 
"(3) The Supreme Court of the Commonwealth of Pennsylvania has ruled on the ...

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