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UNITED STATES EX REL. COX v. RUSSELL

April 4, 1968

UNITED STATES of America ex rel. Clinton COX
v.
Harry E. RUSSELL



The opinion of the court was delivered by: DAVIS

 The relator has filed a petition for a writ of habeas corpus alleging that his 1964 conviction for common law and statutory rape was illegal. He received a sentence of 5 to 10 years imprisonment on the statutory rape conviction only; sentence was suspended on the conviction of the common law offense. *fn1" The allegations of error are discussed, as follows:

 I.

 PROCEDURAL ISSUES.

 A. Exhaustion of State Remedies.

 After his conviction, the relator, with representation of counsel, filed a motion for a new trial. However, it was denied on October 28, 1964. There was no appeal. The relator then filed two petitions for writs of habeas corpus; *fn2" the latter resulted in obtaining leave to appeal Nunc Pro Tunc. On appeal, the Superior Court affirmed. *fn3" Although no petitions were filed under the Pennsylvania Post Conviction Hearing Act, 19 P.S.Pa. § 1180-1 et seq., the relator's state remedies have been exhausted, since the ruling on the merits by the Superior Court has foreclosed any further consideration by a State Court, under the Act. 19 P.S.Pa. § 1180-4(a)(2). Consequently, the requirements for exhaustion of state remedies as specified in 2254(b) and (c) of the Judicial Code have clearly been fulfilled.

 In Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963) the Supreme Court held that a federal court must grant a hearing to resolve factual issues, if it is apparent that the fact-finding procedure which the state court utilized, was not adequate to provide a full and fair hearing:

 
Even where the procedure employed [by the state court] does not violate the Constitution, if it appears to be seriously inadequate for the ascertainment of the truth, it is the federal judge's duty to disregard the state findings and take evidence anew. Supra, at p. 316, 83 S. Ct. at p. 759.

 This statement essentially synopsizes the subsequent Congressional enactment of the 1966 amendment to the Habeas Corpus Act, 28 U.S.C. § 2254(d), regarding the circumstances under which an evidentiary hearing is required. See also United States ex rel. Ackerman v. Russell, 388 F.2d 21 (3rd Cir. 1968).

 Although the relator has raised allegations of error which may properly be characterized as factual, the five transcripts of record which we have carefully examined, together with the rather exhaustive findings of the Superior Court of Pennsylvania which appear in its Opinion of March 23, 1967, preclude the necessity of an additional factual hearing regarding the issues to be discussed in this Opinion. This is in keeping with the observation of the Chief Justice that if the District Judge:

 
* * * concludes that the habeas applicant was afforded a full and fair hearing by the state court resulting in reliable findings, he may, and ordinarily should, accept the facts as found in the hearing. Townsend v. Sain, supra, 372 U.S. at 318, 83 S. Ct. at 760.

 II.

 SUBSTANTIVE ...


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