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UNITED STATES EX REL. EAST v. RUNDLE

February 14, 1968

UNITED STATES of America ex rel. James EAST
v.
Alfred T. RUNDLE, Supt.



The opinion of the court was delivered by: BODY

 BODY, District Judge.

 The relator, James East, claims that he has been unconstitutionally deprived of his right to bail pending his appeal from his robbery conviction in the Pennsylvania state courts.

 We are informed by a telephone call to the Prothonotary's office that if East "seriously" desires a merits ruling from the state Supreme Court on his right to bail, then he may resubmit his appeal and receive such ruling. Technically, it could be thus argued that East has not entirely exhausted his available state remedies, and that therefore this Court should refrain from ruling on the merits of his habeas corpus contentions. We are persuaded otherwise.

 The Prothonotary's authority to return Supreme Court appeal applications because he doubts their seriousness or their merit is very dubious at best. Compare Commonwealth v. Berry, 426 Pa. 558, 233 A.2d 224 (1967). In light of East's obvious immediate need for a final ruling on his bail application before the merit of his robbery conviction appeal was determined, the delay occasioned by the Prothonotary's return of his application rendered his state court remedy inadequate. Therefore we conclude that the relator is not required to return to the state courts on the bail issue or to convince the Prothonotary of the seriousness of his appeal application.

 In turning to the merits of East's petition, we note that the alleged right to bail pending appeal has certainly never been held a constitutional right applicable to the states. Of course, if the relator could show that the state court's denial of his bail was entirely arbitrary or discriminatory, he would be entitled to relief under the Fourteenth Amendment. See Wansley v. Wilkerson, 263 F. Supp. 54, 57 (D.Va.1967). However, the circumstances of this case and the district attorney's answer to East's state court bail application reveal a sufficient factual basis for the denial of bail. East had been convicted of a robbery offense; he had received a lengthy sentence; he had already served two years of his theoretically rehabilitative sentence; and the district attorney opposed his release on bail. The district attorney noted that East had possibly eighteen more years to serve on his sentence, and that the consequent temptation to flee the jurisdiction might make him a poor bail risk. Additionally, the district attorney argued that releasing a prisoner on bail who had already served two years would seriously disrupt prison routine and interrupt the prisoner's rehabilitation treatment.

 We conclude that the state court's denial of bail was rationally supported by the circumstances of the case. Therefore the relator is not entitled to relief on this petition. See United States ex rel. Smith v. Prasse, 277 F. Supp. 391, E.D.Pa., opinion by the Honorable Joseph S. Lord, III (December 14, 1967.)

19680214

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