Shortly before the Pennsylvania Supreme Court denied allocatur in the relator's case, it decided Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A.2d 233 (1966). In that case, involving a factual setting closely analogous to that of the present case, the court held Ulmer's previous conviction invalid on the ground that at trial he was not represented by counsel and had not been advised of his rights. It further held that since the earlier sentence was invalid, failure to credit the petitioner with the time served on that sentence before beginning to serve the subsequently imposed valid sentence would unduly lengthen his stay in prison. The court concluded that he was therefore entitled to have the latter sentence computed to run from the time that he was committed on the charge giving rise to that sentence, rather than from the time that the prior sentence was invalidated.
After learning of the decision in Ulmer, the relator filed a Post-Conviction Hearing Act petition alleging that the holding in that case was applicable to his case also. That petition was denied by the Philadelphia Common Pleas Court, October 26, 1966; the Superior Court affirmed; the Supreme Court again denied allocatur.
Thus, the relator has apparently exhausted his state judicial remedies as required by 28 U.S.C. § 2254.
In May, 1966, the relator filed a federal habeas corpus petition alleging the same grounds as those involved in the state court proceedings. That petition was dismissed May 25, 1966, for failure to raise a substantial federal question. The present unamended petition filed September 1, 1967, restated precisely the same allegations as the earlier petition which I dismissed. But then on January 11, 1968, the relator filed an amendment to his petition, shifting the basis of his demands for credit.
The relator's second federal habeas, as amended, relies on two recently decided federal court decisions in support of his proposition that crediting of his present sentence with the time served on the prior invalidated sentence is required by federal due process. In the first, Hill v. Holman, 255 F. Supp. 924 (M.D.Ala.1966), Hill, the petitioner, had served six years of an original ten year sentence, which judgment was later set aside by a state court. On re-trial Hill pleaded guilty to a lesser charge and received a sentence of a year and a day. In granting Hill's habeas corpus petition the federal court held that due process required that the petitioner have the time served on the prior erroneous sentence credited against the valid sentence later imposed; and that since the time already served was in excess of the latter sentence, the petitioner was entitled to immediate release.
The present case is distinguishable from Hill v. Holman in that there the sentence against which the time served on the previous defective sentence was credited arose out of the same incidents giving rise to the previous sentence and were imposed by the same court. Here the sentences were on unrelated offenses and were imposed in different counties. In the former case courts have consistently held it to be a denial of due process to treat time served on a defective sentence as "dead time" and not allowable as credit when a prisoner is re-tried and given a new sentence in excess of the time served under the old sentence.
In the latter case the difficulties of requireing credit as a matter of due process are readily apparent. For example, as one court observed:
"That would mean that the situation could be created wherein a person might have several years of prison time to apply to a sentence for a crime that he has not as yet committed or for which he has not been prosecuted."
This does not mean that a sentencing court could not, if it wished, take into consideration the fact that a prisoner had spent some years incarcerated erroneously when sentencing on an unrelated offense; it merely means that it may not be required to do so.
But the relator does not rely completely on Hill v. Holman, supra; he also cites Bauers v. Yeager, 261 F. Supp. 420 (D.N.J.1966). In Bauers, the court held that crediting the petitioner's current sentence with the time previously served on a prior unrelated and subsequently invalidated sentence was not a requirement of federal due process; but, that due process did require that the petitioner be able to present to the sentencing court the fact that he had served time erroneously. And since in his case the previous sentence was expunged while he was serving the valid sentence, the sentencing court was deprived of knowledge of that fact in passing on his sentence. The District Court therefore granted the writ conditional on the petitioner's being given the opportunity to present his claims before the state court via a resentencing.
While Bauers is more readily analogous to the present case than is Hill v. Holman, supra, since it also involved unrelated sentences, I am unable to follow the path taken by that court. I concur with the holding of the District Court of New Jersey to the extent that it finds that due process requires that a state prisoner be given the opportunity to bring to the attention of the sentencing court the fact that he has previously served time on an erroneous sentence; and, if he has not had this opportunity because the prior sentence was invalidated subsequent to his sentencing on the valid sentence that he is then serving, that he be given a hearing to bring this fact to the attention of the sentencing court. But, I respectfully decline to follow that portion of the court's ruling which would require that the relator be granted, pursuant to a federal writ of habeas corpus - the opportunity to bring the matter before the state sentencing court anew, when he has raised the issue via state habeas corpus and post-conviction proceedings previous to filing his federal habeas corpus petition. In each of the state proceedings the relator fully raised the issues presented in his federal petition and they were rejected by the state courts. To now require the state courts to give "appropriate consideration" to the relator's federal due process claim after holding that claim to be untenable would be to do by indirection what I have directly disclaimed, and thereby initiate an unnecessary judicial proceeding.
And now, this 8th day of April, 1968, after due consideration of the relator's amended petition for a writ of habeas corpus, it is hereby ordered that the petition be, and the same hereby is, denied, for failure to raise a substantial federal question.
A certificate of probable cause to appeal is denied. Fitzsimmons v. Yeager, 391 F.2d 849 (3rd Cir., Feb. 17, 1968.)