UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: June 6, 1968.
UNITED STATES OF AMERICA EX REL. FRANK EARL SENK, APPELLANT,
H. E. RUSSELL, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION, HUNTINGDON, PENNSYLVANIA
McLaughlin, Kalodner and Van Dusen, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
This case is before the court on appeal from an order of the District Court, denying appellant's petition for a writ of habeas corpus entered after careful consideration of the state court record, findings and conclusions. See United States v. Russell, 274 F. Supp. 783 (1967). The background of the case is accurately stated as follows in the first paragraph of Commonwealth v. Senk, 423 Pa. 129, 223 A.2d 97, 98 (1966):
"On April 5, 1962, the appellant, Frank Earl Senk, was convicted, by a jury in Columbia County, of murder in the first degree. Sentence was fixed at death. An appeal to this Court followed, and we affirmed the judgment, 412 Pa. 184, 194 A.2d 221 (1963). Subsequently, the United States Supreme Court granted certiorari, and on June 22, 1964, vacated our order of affirmance and remanded the case to this Court for further proceedings, not inconsistent with its decision in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 * * * (1964). See, [Com. v. Senk] 378 U.S. 562, 84 S. Ct. 1928, 12 L. Ed. 2d 1039 * * * (1964)."
The issue of the voluntariness of the appellant's confession made in the early morning hours of January 21, 1962, more than 50 hours after his arrest at 9:15 P.M. on January 18, 1962, was submitted to the state trial court on the previously made trial record, supplemented by a brief stipulation. By opinion filed November 24, 1964, the trial court concluded that the confession was voluntary and this was affirmed by the above-cited opinion of the Pennsylvania Supreme Court,*fn1 which
"* * * noted that the incriminating statements were made at a time when Senk was without the benefit of legal counsel, had not been offered such assistance, and also before he was given adequate warning of his right to remain silent.*fn2
See 223 A.2d at 99.
Subsequent to the opinion and order of the District Court in this case, we have ruled that the Pennsylvania state courts should be given an opportunity to act with respect to alleged denial of the constitutional rights of a Pennsylvania prisoner seeking a writ of habeas corpus in the federal court through a proceeding brought under the Pennsylvania Post Conviction Hearing Act, 19 P.S. §§ 1180-1 to 1180-14. United States ex rel. Singer v. Myers, 384 F.2d 279 (3rd Cir. 1967). In making its findings and conclusions in November 1964, the state trial court did not have before it the June 1966 decisions of the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966); and Davis v. State of North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966).*fn2a In view of the prolonged period of custody and questioning of the appellant and the failure to advise him fully as to the extent of his privilege against self-incrimination as discussed in the foregoing cases, we will affirm the order of the District Court solely for the reason that appellant has not exhausted his available state remedies, as required by 28 U.S.C. § 2254, and without prejudice to his right to apply for relief under 19 P.S. §§ 1180-1 to 1180-14, as stated above. The state trial court will have the opportunity to consider this case in the light of the above-cited 1966 decisions of the Supreme Court of the United States when a proceeding under the Post Conviction Hearing Act is brought before it.