application for writ of habeas corpus. The relator does not state the disposition of this petition; the answer of the district attorney states that there was a hearing on the petition before Common Pleas Judge John Meade on August 10, 1970 and that the petition was dismissed. The relator is presently awaiting trial.
This request for the writ of habeas corpus is different from most such requests for the writ since it has not been filed as an attempt to gain post-conviction relief. Rather relator seeks to challenge the constitutionality of his pretrial detention pursuant to the indictments charging carrying a concealed deadly weapon and murder. The principles of law applicable to this action differ somewhat from the more familiar breed of post-conviction habeas corpus.
28 U.S.C. § 2254 (Supp. V, 1970), which is generally applicable to habeas corpus petitions filed by persons in state custody, is not applicable here since relator is not held in custody "pursuant to the judgment of a State court." United States ex rel. Weston v. Nenna, 290 F. Supp. 42 (S.D.N.Y. 1968); Plummer v. State of Louisiana, 262 F. Supp. 1021 (E.D. La. 1967); see Hillegas v. Sams, 349 F.2d 859, 861 (5th Cir. 1965) (concurring opinion); United States ex rel. Waldron v. Lennox, 244 F. Supp. 239, 241 n. 4 (E.D. Pa. 1965); Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal & Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev. 793, 891 n. 417 (1965) [hereinafter cited as Amsterdam]. Hence, relator here is proceeding under 28 U.S.C. § 2241(c)(3).
Because relator does not proceed under 28 U.S.C. § 2254 (Supp. V, 1970), which contains the requirement that relator must exhaust his state court remedies before coming into federal court, several authorities suggest that relator need not exhaust his state court remedies. Plummer v. State of Louisiana, 262 F. Supp. 1021, 1022 (E.D. La. 1967); United States ex rel. Waldron v. Lennox, 244 F. Supp. 239, 241 n. 4 (E.D. Pa. 1965); R. Sokol, Federal Habeas Corpus, § 22 at 161 (2d ed. 1969) [hereinafter cited as Sokol]; Amsterdam, 891 n. 417. This Court does not agree. The very case in which the Supreme Court enunciated the exhaustion doctrine was one in which the relator was held in state custody pending trial. Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868 (1886); see Plummer v. State of Louisiana, 262 F. Supp. 1021 (E.D. La. 1967); Sokol, § 22 at 160. Ex parte Royall is still good law. It would be strange indeed were this Court to hold that the enactment of 28 U.S.C. § 2254, which was enacted by Congress to codify existing habeas corpus practice, Irvin v. Dowd, 359 U.S. 394, 79 S. Ct. 825, 3 L. Ed. 2d 900 (1958), had the effect of eliminating the exhaustion requirement generally in habeas corpus cases where the petition is filed by one in state custody pending trial. See Plummer v. State of Louisiana, 262 F. Supp. 1021 (E.D. La. 1967).
Since there is no showing that relator's case is extraordinary within the meaning of Ex parte Royall
and Baker v. Grice,
this Court concludes that the requirement of exhaustion is applicable here.
Relator has met his exhaustion requirement. He has brought his petition for habeas corpus relief to the state court and it was dismissed. No appeal from the denial of the writ by the state court is possible since the Superior Court has held such a denial to be interlocutory rather than an appealable final judgment. Commonwealth ex rel. Nichols v. Hendrick, 197 Pa. Super. 646, 180 A. 2d 88 (1968); see United States ex rel. Waldron v. Lennox, 244 F. Supp. 239 (E.D. Pa. 1965). Hence the relator has exhausted all the remedies available to him in the state courts at this time. Fay v. Noia, 372 U.S. 391, 399, 434-435, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
Though there has been compliance with the exhaustion requirement, this Court does not feel that the facts alleged here provide a sufficient reason why we should grant the writ. We must remember that
"It is an exceedingly delicate jurisdiction given to the federal courts, by which a person under an indictment in a state court, and subject to its laws, may, by the decision of a single judge of the federal court, upon a writ of habeas corpus, be taken out of the custody of the officers of the state, and finally discharged therefrom, and thus a trial by the state courts of an indictment found under the laws of a state be finally prevented."