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UNITED STATES EX REL. KORESKO v. RUNDLE

July 28, 1971

UNITED STATES of America ex rel. John J. KORESKO
v.
A. T. RUNDLE, Supt.


Wood, District Judge.


The opinion of the court was delivered by: WOOD

WOOD, District Judge.

 Relator has petitioned the Court for a writ of habeas corpus. He was arrested on November 7, 1967 and charged in Bills of Indictment Nos. 2107 to 2115. On May 28, 1968 in the Court of Common Pleas of Montgomery County he pleaded guilty to all the Bills of Indictment except Bill No. 2110 to which he entered a plea of not guilty. He was sentenced to a term of 4 1/2 to 12 years in prison.

 Relator petitioned for relief under the Post Conviction Hearing Act, 19 Pa. Stat. Ann. § 1180-1 et seq., alleging inter alia that his guilty plea had not been voluntarily entered, that he had been denied effective assistance of counsel and that he had been denied his right of appeal. The Court denied his petition but granted him the right to appeal nunc pro tunc. Relator then brought the instant petition for habeas corpus relief in which he stated that he refused to exercise his right to appeal nunc pro tunc. Accordingly his petition was denied without prejudice for failure to exhaust state remedies. He subsequently moved to have his petition reinstated but, as he had still not exhausted state remedies, we again denied his petition without prejudice. It now appears that relator has attempted to exhaust his state remedies and that further relief is unavailable to him. Accordingly his petition is appropriate for adjudication. 28 U.S.C. § 2254(c). As relator was accorded a full and fair evidentiary hearing in the state court, there is no necessity for a further hearing in this Court. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). In addition to the grounds previously stated, relator also alleges that he was improperly arrested, interrogated by police without being advised of his constitutional rights, and subjected to an illegal search and seizure. As a plea of guilty, voluntarily entered, operates as a waiver of such claims, United States v. Ptomey, 366 F.2d 759 (3rd Cir. 1966), we turn first to the issue of the voluntariness of relator's plea.

 The state court found that relator's contention that he was prevented from understanding the nature of his plea by the effect of melarill was without merit. Such a finding, if supported by the record, must be presumed to be correct. 28 U.S.C. § 2254(d); Townsend v. Sain, supra. The record in the instant case clearly supports the state court's finding.

 Before relator entered his guilty plea a full inquiry was made into the voluntariness of the plea. Under the Court's direction, the District Attorney questioned relator in the following manner:

 
"Mr. Nicholas: In other words, let me ask you this, are you making this plea voluntarily?
 
The Defendant: Yes.
 
* * *
 
"Mr. Nicholas: Have you had anything to drink at all?
 
The Defendant: No.
 
Mr. Nicholas: Are you under any ...

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