APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Aldisert, Gibbons and Hunter, Circuit Judges.
This is an appeal from the denial of a petition for a writ of habeas corpus. The district court certified probable cause for appeal. Petitioner Senk is confined in a Pennsylvania prison on a judgment of sentence following his conviction, in 1962, for first degree murder. His conviction was affirmed by the Pennsylvania Supreme Court. Commonwealth v. Senk, 412 Pa. 184, 194 A.2d 221 (1963). That judgment was vacated by the United States Supreme Court and the case was remanded for a hearing pursuant to Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), on the admissibility of Senk's extrajudicial statements. Senk v. Pennsylvania, 378 U.S. 562, 12 L. Ed. 2d 1039, 84 S. Ct. 1928 (1964) (per curiam). The Pennsylvania Supreme Court then remanded to the trial court with directions to hold a hearing to determine whether Senk's extrajudicial statements, admitted at his trial, were voluntary. The trial court found that the statements were voluntary and so reported to the Supreme Court of Pennsylvania, which affirmed. Commonwealth v. Senk, 423 Pa. 129, 223 A.2d 97 (1966), cert. denied, 387 U.S. 914, 18 L. Ed. 2d 638, 87 S. Ct. 1694 (1967).
In 1967 Senk filed a petition in the district court for a writ of habeas corpus. He contended:
(1) that he had been deprived of his right to counsel;
(2) that a confession used at his trial had been obtained in violation of his privilege against self-incrimination;
(3) that there was introduced in evidence testimony concerning his refusal to submit to a polygraph examination;
(4) that the trial court should have granted a mistrial when on two separate occasions police officers testified about his criminal record;
(5) that he was arrested without a warrant and without probable cause and was detained for 67 hours before being taken before a Magistrate.
In the district court, Judge Follmer, on the basis of the state court record, without any federal evidentiary hearing, denied the petition for a writ of habeas corpus. United States ex rel. Senk v. Russell, 274 F. Supp. 783 (M.D. Pa. 1967). Senk appealed. This court on appeal noted (1) that in making its findings on the admissibility of Senk's extrajudicial statements in the Jackson v. Denno hearing the Pennsylvania trial court did not have the benefit of the Supreme Court's subsequent decisions in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966) and Davis v. North Carolina, 384 U.S. 737, 16 L. Ed. 2d 895, 86 S. Ct. 1761 (1966), and (2) that the district court in rejecting the petition did not have the benefit of this court's subsequent decision in United States ex rel. Singer v. Myers, 384 F.2d 279 (3d Cir. 1967), rev'd per curiam, 392 U.S. 647, 88 S. Ct. 2307, 20 L. Ed. 2d 1358 (1968). The latter case held that a Pennsylvania prisoner, before seeking federal habeas corpus relief, ordinarily must exhaust remedies still available under the Pennsylvania Post Conviction Hearing Act. Pa. Stat. Ann. tit. 19, §§ 1180-1 to 1180-14 (Supp. 1972). We said:
"In view of the prolonged period of custody and questioning of the appellant and the failure to advise him fully as to the extent of his privilege against self-incrimination as discussed in the foregoing cases, we will affirm the order of the District Court solely for the reason that the appellant has not exhausted his available remedies, as required by 28 U.S.C. § 2254, and without prejudice to his right to apply for relief under 19 P.S. §§ 1180-1 to 1180-14, as stated above." United States ex rel. Senk v. Russell, 396 F.2d 445, 447 (3d Cir. 1968) (per curiam).
The opinion of this court makes it quite clear that all matters which the appellant wished to raise in the petition for habeas corpus in the federal courts must be raised in a Pennsylvania Post Conviction Hearing Act ...