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UNITED STATES EX REL. BROWN v. RUNDLE

July 27, 1971

UNITED STATES of America ex rel. Robert Benjamin BROWN
v.
Alfred T. RUNDLE


Body, District Judge.


The opinion of the court was delivered by: BODY

BODY, District Judge.

 Before the Court is the request of Robert Benjamin Brown for a writ of habeas corpus.

 Relator entered a plea of guilty on a charge of larceny of an automobile, No. 179 May Sessions 1957 in Philadelphia County. He was committed to Camp Hill on an indeterminate sentence

 In May Sessions 1960 in Philadelphia County, relator was indicted on several different charges: aggravated robbery (No. 1364), playfully pointing a firearm (No. 1365), and conspiracy (No. 1367). He was also indicted, No. 406 June Sessions 1960 in Philadelphia County, on the charge of operating a motor vehicle without the consent of the owner. Relator was found guilty on all charges after a jury trial on November 15, 1960. Judge Sloane imposed sentence on January 13, 1961: ten to twenty years imprisonment on the charge of aggravated robbery and concurrent one to two year sentences on the other charges. Relator is presently confined at the State Correctional Institution at Graterford. His present petition challenges only his conviction on the charge of aggravated robbery (No. 1364).

 Relator has filed two state habeas corpus petitions challenging his conviction on No. 1364. The first, filed in July 1965, alleged the following grounds for relief; conviction based on unconstitutionally seized evidence; denial of right to preliminary hearing; improper denial of his request for severance; jury returned a verdict of guilty on one of the counts in the indictment contrary to the court's directions; court improperly informed the jury it had no doubt as to relator's guilt; and denial of notes of testimony taken at Magistrate's court. Judge Spaeth denied the petition in an opinion filed on October 7, 1965. The Superior Court affirmed the order denying the petition. Commonwealth ex rel. Brown v. Myers, 207 Pa. Super. 725, 216 A. 2d 95, 99 (1966).

 The second petition, filed shortly thereafter, alleged the following grounds for relief: the sentence was unlawful (on No. 1365); the conviction of conspiracy was improper in that no co-conspirator was produced at trial; his juvenile record was wrongfully considered by the trial court at sentencing; denial of the right to a preliminary hearing; he did not knowingly waive his right of appeal. Relator was granted a hearing before Judge Gold on October 24, 1966. The petition was granted to the extent of giving relator leave to appeal from his judgment of sentence nunc pro tunc but was denied with respect to relator's substantive allegations.

 Relator appealed his judgment of sentence to the Superior Court contending that his sentence should be set aside because the court which imposed it considered a 1957 juvenile commitment which was ordered after a proceeding where relator was supposedly without counsel. Judgment of sentence was affirmed without opinion, Commonwealth v. Brown, 212 Pa. Super. 716, 241 A. 2d 348 (1968), and the Pennsylvania Supreme Court denied relator's request for allocatur.

 In his present federal habeas petition, relator alleges the following grounds as a basis for relief in this Court:

 
(1) Illegal arrest without a warrant
 
(2) Denial of right to counsel in that Judge denied counsel's exceptions regarding assignment of error and certain points for charge
 
(3) Inordinate delay in PCHA petition disposition
 
(4) His sentence is unlawful in that it is based on a prior juvenile conviction where relator did not have counsel

 Since relator has filed his habeas corpus petition in this Court challenging his conviction on No. 1364, he has had pending a petition in the state courts challenging his conviction in 1957. He was granted a new trial on that indictment (No. 179 May Sessions ...


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