Corpus, 83 Harv. L. Rev. 1073-1079 (1970) [hereinafter referred to as Note, Developments -- Habeas].
Stallings v. Splain is not devoid of vitality, however, for its holding has been reaffirmed in several recent Circuit Court opinions. Allen v. United States, 349 F.2d 362 (1st Cir. 1965); Matysek v. United States, 339 F.2d 389 (9th Cir. 1964), cert. denied, 381 U.S. 917, 85 S. Ct. 1545, 14 L. Ed. 2d 437 (1965). Contra, Marden v. Purdy, 409 F.2d 784 (5th Cir. 1969); Burris v. Ryan, 397 F.2d 553 (7th Cir. 1968). The most recent decisions in this Circuit concerning this subject matter tend to uphold the teaching of the Stallings decision. McLeod v. Peterson, 283 F.2d 180 (3d Cir. 1960); United States ex rel. Potts v. Rabb, 141 F.2d 45 (3d Cir.), cert. denied, 322 U.S. 727, 64 S. Ct. 943, 88 L. Ed. 1563 (1944). We hence conclude that one who has been released on bail, without more, is not in custody for purposes of federal habeas corpus.
It is worth noting, with respect to No. 594, that were we to have decided that we did have jurisdiction, relator would still have to meet the exhaustion requirement, United States ex rel. Hill v. Hendricks, 321 F. Supp. 300 (E.D. Pa. 1970), which he has not done. Though our relator could not bring his claims of denial of a speedy trial and of double jeopardy under the PCHA, since he does not stand convicted of a crime, 19 Pa. Stat. Ann. § 1180-3(a) (Supp. 1971); United States ex rel. Kirk v. Kirkpatrick, 330 F. Supp. 821, at 822 n. 3 (E.D. Pa. 1971), he could present his claim in state habeas corpus proceedings, 12 Pa. Stat. Ann. § 1901-07, United States ex rel. Murray v. Commonwealth, Civil Action No. 71-846 (E.D. Pa. May 28, 1971).
With respect to Nos. 1520-1529, there would appear no longer to be a controversy concerning the denial of a right to speedy trial since he was tried on these charges in January 1971. In any event, however, relator has made no effort to exhaust his available state remedies, which are also under state habeas corpus, 12 Pa. Stat. Ann. § 1901-07, since relator yet remains unsentenced. United States ex rel. Murray v. Commonwealth, supra.
Accordingly, we must deny relator's request for the writ.