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UNITED STATES EX REL. STEPHENSON v. MAZURKIEWICZ

April 29, 1970

UNITED STATES of America ex rel. Harold STEPHENSON
v.
Joseph MAZURKIEWICZ


Masterson, District Judge.


The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 In this habeas corpus petition, relator asserts the following grounds for relief:

 (1) that the indictment in his case was void;

 (3) that relator, after pleading guilty to murder generally, did not receive a fair hearing on the degree of guilt;

 (4) that relator's plea of guilty was not understandingly made; and

 (5) that relator was denied effective assistance of counsel.

 On October 4, 1966, relator pled guilty to murder generally before a three-judge panel and a hearing was held to determine the degree of guilt. The three judges found him guilty of murder in the second degree and sentenced him to ten to twenty years imprisonment. Relator attacked his conviction in the state courts under the Pennsylvania Post-Conviction Hearing Act alleging that he was denied his right to appeal. This petition was denied on March 28, 1967. Relator filed a second petition in the state courts in October, 1967. In this petition he raised substantially the same contentions as those before this Court. An evidentiary hearing was held on December 15, 1967, and the relator's petition was denied. On appeal to the Supreme Court of Pennsylvania, the denial was affirmed on January 15, 1969, in an opinion by Justice Roberts. Commonwealth v. Stephenson, 433 Pa. 167, 248 A. 2d 834 (1969). Relator then filed his petition before this Court. In an excess of caution we appointed counsel and held a hearing on September 26, 1969. Upon examination of the entire record in this case, we have decided that relator's petition for a writ of habeas corpus must be denied.

 Although relator did not press his first three contentions at our hearing or in his post-trial brief, we will briefly discuss them.

 I. INVALID INDICTMENT

 Relator contends that his indictment is invalid because "no competent witnesses appeared before the grand jury prior to, or for the purpose of, indicting petitioner". Relator has failed to present any evidence to support this contention. Moreover, defendant has waived any defect in his indictment by virtue of his guilty plea. United States v. Ptomey, 366 F.2d 759 (3d Cir. 1966); Commonwealth v. Garrett, 425 Pa. 594, 229 A. 2d 922 (1967).

 II. ILLEGAL CONFESSION

 Relator contends that his constitutional rights were violated when defense counsel, Lester Schaffer and C.J. Margiotti, Jr., introduced on relator's behalf an illegally obtained confession at the degree of guilt hearing. Defense counsel Schaffer testified at our hearing that the statement was introduced for relator's benefit because it contained certain facts which would tend to reduce the degree of murder from first to second. (Notes of Testimony, Federal Habeas Corpus Hearing, pp. 9-10). Since the confession was not used against relator, but rather for his benefit, there had been no violation of his constitutional rights. Even if there were a ...


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