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UNITED STATES EX REL. HAYES v. JOHNSTON

August 4, 1971

UNITED STATES of America ex rel. Henry David HAYES
v.
Frank C. JOHNSTON, Superintendent


Body, District Judge.


The opinion of the court was delivered by: BODY

BODY, District Judge.

 Before the Court is the petition of Henry David Hayes for a writ of habeas corpus.

 Relator was indicted by a Philadelphia County Grand Jury (No. 1291, December Sessions, 1968) on charges of burglary of an automobile, larceny, and receiving stolen goods. He was tried before the Honorable Herbert S. Levin, after waiver of a jury trial, on February 7, 1969, and was adjudged guilty. He was sentenced to imprisonment for a term of one to five years.

 Relator filed a petition under the Pennsylvania Post-Conviction Hearing Act [PCHA], 19 Pa. Stat. Ann. § 1180-1 et seq. (Supp. 1971) in which he alleged that he was not advised of his right to appeal with appointed counsel, and that his trial counsel was ineffective because that counsel stipulated, without first obtaining relator's consent, to the testimony of the vehicle owner were he called upon to testify. A hearing was held on the petition before the Honorable Theodore B. Smith on September 2, 1969. Judge Smith dismissed the petition with respect to the claim of ineffective counsel, but granted relator the right to file post-trial motions, nunc pro tunc, since the Commonwealth conceded Hayes had not been informed of his right to appeal.

 On October 16, 1969 Judge Smith dismissed relator's motions for a new trial and in arrest of judgment. The Superior Court affirmed judgment of sentence. Commonwealth v. Hayes, 216 Pa. Super. 784, 261 A. 2d 114 (1970). The Supreme Court denied allocatur on April 27, 1970, No. 7-A, Miscellaneous Docket No. 18.

 In his present petition for habeas corpus in this Court relator makes four allegations of error entitling him to relief:

 
1) Denial of his right to appeal
 
2) Denial of assistance of counsel at preliminary hearing
 
4) Denial of effective assistance of counsel in that counsel stipulated, without first obtaining relator's consent, to the testimony of a witness who could have been called to testify

 1) Denial of his right to appeal

 There is no merit to this claim since relator was granted the right to appeal, nunc pro tunc, by the PCHA court. Relator does not indicate, nor can we discern, any prejudice resulting from the delay in his appeal. United States ex rel. Roundtree ...


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