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June 28, 1968

UNITED STATES of America ex rel. Donald JOHNSON, E-7769
A. T. RUNDLE, Supt.

The opinion of the court was delivered by: LORD, III

 Relator, a state prisoner, was convicted of rape on November 8, 1957 and is presently incarcerated under a six-and-one-half-to-fifteen-year sentence resulting from that conviction. He now seeks his release by way of federal habeas corpus.

 The conviction arose from the events of the evening of September 18, 1957 at which time a 17-year-old white girl was assaulted and raped by a group of Negro boys. On September 20 or 21, relator, having been picked up for questioning in the early evening of the 20th, confessed to his complicity in the attack.

 Relator now claims that he is entitled to habeas relief for the following reasons:

 1) that his confession was involuntary and therefore its introduction into evidence at his trial wrought a denial of due process;

 2) that the introduction into evidence of his "tacit admission" deprived him of due process of law;

 3) that the use of his juvenile convictions for impeachment denied him due process of law since those convictions were obtained while he was without the benefit of counsel;

 4) that the Commonwealth's insistence on a jury trial after he had attempted to waive it denied him an impartial trial, free from public passion and prejudice;

 5) that the absence of counsel at sentencing denied him his right to counsel at a critical stage. This the District Attorney concedes and therefore, at the very least, relator is entitled to be resentenced at a time when he is represented by counsel.

 None of relator's claims have, as yet, been passed upon by the state courts. He argues, however, that his failure to exhaust his state remedies is not a bar to relief here since the state has been guilty of inordinate delay. We held a full hearing to consider this and also to hear his substantive claims.

 After considering the entire record we hold (1) that because of the excessive delay in the state courts we are justified in proceeding to the merits, and (2) that relator's confession was involuntary and therefore he is entitled to have the writ of habeas corpus granted. *fn1"

 I. Inordinate Delay

 The relator filed for post-conviction relief in the state courts on August 8, 1966. As of March 9, 1968, the date we held our hearing, no decision had as yet been rendered by the state courts on his claims although he had been granted leave to file post-trial motions nunc pro tunc. This action was taken on February 1, 1968. However, as of the present date no further action has been taken. The question then is whether relator should be precluded from relief here because the state courts have not passed on his claims.

 The "exhaustion doctrine", simply stated, is that a habeas applicant, before being entitled to federal relief, must first pursue those state remedies still open to him at the time he files his petition in the federal court. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

 While it is true that non-compliance with this doctrine does not defeat the jurisdiction of the federal courts in these matters, Bowen v. Johnston, 306 U.S. 19, 59 S. Ct. 442, 83 L. Ed. 455 (1939), we do recognize that its practical effect limits, at least initially, the availability of federal habeas corpus.

 Despite this limitation it is clear that the "exhaustion doctrine" does serve a valid purpose to the extent that it furthers our notions of federalism. For surely "[it] would be unseemly in our dual system of government for a federal district court to upset a state conviction without an opportunity to the state courts to correct a constitutional violation. * * *" Darr v. Burford, 339 U.S. 200, 204, 70 S. Ct. 587, 590, 94 L. Ed. 761 (1949).

 Theoretically, of course, the individual will not be disadvantaged by this doctrine since the state courts as well as the federal courts are bound by the strictures of the United States Constitution. And, therefore, any relief available in the federal courts should be equally available in the state courts.

 Of course, the theoretical premise assumes that the states will allow the individual to present his claims without overly burdensome procedural snarls and to render decisions on them with reasonable dispatch. If the state does not act so, then the effect of the "exhaustion doctrine" would be "to shield an invasion of the citizen's constitutional rights." Jordan v. Hutcheson, 323 F.2d 597, 601 (C.A.4, 1963). And "[it] is clear that there are sharp limits to the sacrifice men must make upon the alter of comity." United States ex rel. Lusterino v. Dros, 260 F. Supp. 13 (S.D.N.Y.1966).

┬áRecognizing this, the federal courts have not held the doctrine to be inflexible. In fact 28 U.S.C.A. ┬ž 2254, which codifies this doctrine, admits an exception where "such (state corrective) process (is) ...

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