The opinion of the court was delivered by: LORD, III
Relator was indicted on Bills of Indictment Nos. 123 (charging felonious use and possession of drugs), 124 (charging burglary with intent to commit a felony), and 125 (charging possession of burglary tools), February Sessions, 1961. On March 2, 1961, relator was brought to trial before the Honorable Edwin W. Clark. Relator's counsel was a member of the staff of the Public Defender Association of Philadelphia. Relator pleaded guilty to the charges of use of narcotics, burglary and possession of burglary tools, but pleaded not guilty to the charge of possession of drugs. Relator waived a jury trial on that charge. At the conclusion of the Commonwealth's case on the possession charge, Judge Clark sustained defense counsel's demurrer, whereupon the Assistant District Attorney stated that, in his view, the evidence did not support the charge of burglary. Judge Clark agreed and adjudicated relator guilty of attempted burglary, as well as use of drugs and possession of burglary tools. Notes of Testimony, Philadelphia Court of Quarter Sessions, February Term, March 2, 1961, p. 5 [hereinafter cited as "Trial N.T."]. Relator was thereupon sentenced to serve from 3 to 7 years on Bill No. 124 (attempted burglary), and 2 to 5 years on Bill No. 123 (use of drugs), the sentences to run concurrently. Sentence was suspended on Bill No. 125 (possession of burglary tools). Trial N.T. 6, 7.
Relator has collaterally attacked his convictions by filing two petitions under the Pennsylvania Post Conviction Hearing Act, 19 Pa.Stat.Ann. § 1180-1 et seq., ("PCHA"). His first petition was denied, after a hearing, on July 11, 1967. No appeal was taken. Relator's second PCHA petition was denied without a hearing and affirmed per curiam by the Pennsylvania Superior Court. Commonwealth v. Sadler, 213 Pa.Super. 727, 244 A.2d 159 (1968). The Pennsylvania Supreme Court denied allocatur.
In this petition for the writ of habeas corpus relator contends that (1) his guilty pleas were not knowingly and intelligently entered; (2) he was deprived of the effective assistance of counsel; and (3) statements he made to the police were involuntarily given. We ordered a hearing and appointed counsel.
At the outset we observe that relator abandoned any attack on his guilty plea to the charge of use of narcotic drugs. At the PCHA hearing, relator's appointed counsel stated to the court that
"* * * [even] today, Your Honor, we do not attack the voluntariness of the plea as to narcotics. The only attack is to the burglary and the burglary tools. It is as to the sufficiency of advice the man got." State N.T. 3.
At the same hearing, relator testified to the same effect when questioned by his counsel:
"Q. In fact, when you were arrested you were under the influence of narcotics?
"Q. So, you are not challenging that guilty plea?
"A. No, I am not challenging the guilty plea as far as drugs." Id. at 14.
It is probable, as the Commonwealth suggests, that relator participated in this decision to concede the validity of his plea to use of narcotics in order to give added credence to his contention that he was under the influence of narcotics when he was arrested. This express waiver of an attack on that guilty plea constitutes a "deliberate by-passing of state procedures * * *", Fay v. Noia, 372 U.S. 391, 439, 83 S. Ct. 822, 849, 9 L. Ed. 2d 837 (1963), sufficient to bar him from seeking relief on that charge in this petition for federal habeas corpus. Henry v. Mississippi, 379 U.S. 443, 451-452, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965); cf. Smith v. Yeager, 393 U.S. 122, 89 S. Ct. 277, 21 L. Ed. 2d 246 (1968). We therefore consider only his plea of guilty to the charges of burglary and possession of burglary tools.
On the morning of January 23, 1961, the police responded to a report from a woman that someone was attempting to break into her apartment. Relator was apprehended by the police inside the apartment building and arrested. Notes of Testimony, Hearing on Petition for Writ of Habeas Corpus, United States District Court for the Eastern District of Pennsylvania, p. 18 [hereinafter cited as "Fed. N.T."]. Approximately two hours after his arrest, relator was interrogated. During his questioning relator admitted that he intended to burglarize the apartments to obtain money for narcotics. Relator contends that this admission was given involuntarily.
In support of this contention, relator testified to the following facts: he had been an addict for approximately one year, and at the time of his arrest was consuming approximately twelve "bags" of heroin a day; he was unable to obtain any drugs for a twenty-hour period before his arrest and was suffering from the effects of drug withdrawal during his interrogation, and that the arresting ...