The question to be decided is whether or not the petitioner has exhausted his available state remedies with respect to the constitutional issue of the validity of his guilty plea.
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: