decided: August 6, 1969; As Corrected September 4, 1969.
Van Dusen, Aldisert and Stahl, Circuit Judges.
The three issues in this habeas corpus appeal are:
(1) whether appellant has exhausted his state court remedies with respect to his claims of unlawful arrest, failure to have counsel at a preliminary hearing, and ineffective counsel;
(2) whether the state courts properly disposed of his double jeopardy claim; and
(3) whether a confession and related statements were properly admitted in his state court trial for murder and other offenses.
The district court dismissed appellant's application for a writ of habeas corpus, without an evidentiary hearing, on the ground that he had failed to exhaust his state remedies on some of his claims and that the other claims had been properly rejected by the state courts.*fn1 To put the issues in proper perspective, it is necessary to relate in some detail what transpired in the state courts.
Appellant Montgomery was brought to trial before a jury in May 1962, in Butler County, Pennsylvania, on consolidated indictments charging murder, arson, burglary and armed robbery. The District Attorney, in his summation to the jury, referred to appellant as a "pro" and as an "old pro." The court granted appellant's motion for a mistrial on the ground that his right to a fair trial had been prejudiced.
Over his protest*fn2 that retrial for first degree murder constituted double jeopardy, appellant was tried again in June 1962, and found guilty of murder in the first degree as well as of the other offenses for which he was indicted.*fn3 The murder conviction resulted in a sentence of life imprisonment which appellant is now serving; lesser concurrent sentences were imposed on the other indictments. No direct appeal was taken.
Early in 1965, appellant submitted to the Butler County court a pro se*fn4 petition for habeas corpus in which he claimed first, that the confession and other inculpatory statements introduced at his trial were erroneously admitted, and secondly, that the retrial for first degree murder constituted double jeopardy. This petition was dismissed without a hearing on February 18, 1965, in an opinion by Judge Shumaker,*fn5 the court reiterating its rejection of the double jeopardy argument and finding no constitutional infirmity in the admission of the statements, especially in light of the fact that Montgomery had taken the stand at his trial and testified to his participation in some of the offenses with which he was charged. In disposing of the present application, the court below did not have before it the Butler County court opinion dismissing this habeas corpus petition.
According to appellant, following the denial of his first state court habeas corpus petition by the Butler County court, he filed a second petition in which he alleges he raised the additional constitutional claims as to which the court below found he had not exhausted his state remedies. The second petition was also denied, again without an evidentiary hearing, in an opinion by Judge Shumaker dated July 15, 1965.*fn6
On appeal to the Supreme Court of Pennsylvania, the denial of habeas corpus was upheld. Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A.2d 859, cert. denied, 385 U.S. 963, 87 S. Ct. 405, 17 L. Ed. 2d 308 (1966). The opinion, by Justice Roberts, dealt with two issues, viz., double jeopardy and the admissibility of the confession.
Exhaustion of State Remedies
Our independent examination of the record before the State Supreme Court ...