Biggs, Kalodner and Freedman, Circuit Judges.
The issue in this habeas corpus case arises from a difference between the district court and the Pennsylvania courts in the construction of the language of a criminal sentence and the method of determining it.
The issue requires a statement of the facts.
Petitioner was found guilty on November 25, 1958, in a Philadelphia criminal court on 50 bills of indictment,*fn1 charging, variously, rape, assault and battery with intent to ravish, aggravated assault and battery, burglary, sodomy, mayhem, carrying a concealed deadly weapon and unlawful impersonation of an officer. All of the latter charges apparently were related to the sexual crimes. On April 3, 1959 he was sentenced under Pennsylvania's "Barr-Walker Act"*fn2 to imprisonment for an indeterminate term from one day to life on Bill No. 938 which charged aggravated assault and battery and assault and battery with intent to ravish. On the remaining 49 bills there was endorsed after the printed word "Sentence" the following notation which was signed by the judge: "See sentence on Bill #938. Oct. 1955. No costs. By the Court."
More than three years later, on November 21, 1962, petitioner's application for habeas corpus was granted in the Philadelphia Court of Common Pleas on the ground that the sentence had violated the Barr-Walker Act because it was imposed more than 90 days after conviction.*fn3 He was ordered returned to the sentencing judge for further proceedings.
On May 17, 1963, the sentencing judge, considering that the habeas corpus judge had in effect vacated the Barr-Walker sentence on Bill No. 938, sentenced petitioner on two of the other 49 bills (Nos. 940 and 970) to consecutive terms of imprisonment for not less than five nor more than 15 years.
Two and one-half years later, petitioner again was awarded habeas corpus in the Court of Common Pleas on the ground that the sentences on Bills Nos. 940 and 970 had originally been suspended and that under the doctrine of Commonwealth v. Duff, 414 Pa. 471, 200 A.2d 773 (1964),*fn4 a new sentence could not be imposed after the expiration of the term of court. On appeal by the Commonwealth, a majority of the Superior Court held that Duff was inapplicable because sentence had never been suspended on Bills Nos. 940 and 970 and that the original sentences thereunder and on all the remaining indictments had incorporated the Barr-Walker sentence written out on Bill No. 938. The Superior Court therefore reversed the order and affirmed the judgments of sentence entered on Bills Nos. 940 and 970. Commonwealth ex rel. Speaks v. Rundle, 209 Pa.Super. 227, 224 A.2d 805 (1966). The Supreme Court of Pennsylvania refused an allocatur.*fn5
Claiming that he had exhausted his state remedies, petitioner filed the present petition for federal habeas corpus. The district court decided that the language "See sentence on Bill #938 * * *" was ambiguous and that the state courts had denied petitioner the due process required by the Fourteenth Amendment in construing that language on its face without affording him an opportunity to present extrinsic evidence regarding the sentencing judge's intention. The district court, therefore, held an evidentiary hearing, at which a clerk in the office of the Clerk of the Court of Quarter Sessions appeared. He testified that he had filled in the language on the indictments which the sentencing judge had signed and that this language customarily was used when a suspended sentence was intended. There was also introduced in evidence the district attorney's list of cases for May 17, 1963, which bore a handwritten notation that sentence had originally been suspended on Bills Nos. 940 and 970. In addition, there was introduced the sentencing judge's comment at the time of the resentencing when petitioner's counsel inquired whether sentence on the remaining 47 bills was suspended, and the judge replied: "Yes. They are suspended as of the last time." At that time the court agreed with counsel's statement that the habeas judge had vacated the sentence imposed under the Barr-Walker Act on Bill No. 938, and then added: "Lest he vacated the suspended sentence on the other bills, we can mark them all suspended." Finally, petitioner himself testified on his understanding of the sentence, in support of his claim.
The Commonwealth offered no evidence, contending that the construction of the language of the sentences was entirely a matter of state law on which the appellate state courts had already spoken definitively in petitioner's case. The district court, however, concluded that petitioner's evidence made it "overwhelming that the trial judge intended to, and did, suspend sentence" on Bills Nos. 940 and 970 as well as on all the other 47 bills, and that the state courts had denied petitioner the equal protection of the laws guaranteed by the Fourteenth Amendment in failing to apply to him the doctrine of Duff. It therefore granted the petition for habeas corpus, United States ex rel. Speaks v. Brierley, 293 F. Supp. 528 (E.D. Pa. 1968), and the Commonwealth has appealed.
Even if due process required that petitioner be given an opportunity to offer evidence outside the record of the sentencing judge's intention, a proper regard for comity would require that the federal courts should not be the first to hold such an evidentiary hearing. Otherwise, the anomalous result follows that the judgment of a state court is interpreted by a federal court on the basis of the testimony of the state court's clerk regarding the state court's custom and practice, although ...