The opinion of the court was delivered by: MCCUNE
William E. Knuckles has filed a pro se petition for writ of habeas corpus alleging certain errors and violations of his constitutional rights during his trial in 1957 for armed robbery, possession of a deadly weapon and narcotics violations.
Petitioner alleges three grounds as a basis for his requested relief:
1. He was denied effective assistance of counsel.
2. The introduction of his prior criminal record was prejudicial.
3. Evidence which was the fruit of an illegal search and seizure was admitted at trial.
We have obtained and reviewed with care petitioner's state court records. We can find no evidence that he has exhausted his state court remedies on the first two issues raised in his petition as required by 28 U.S.C. § 2254(b). Therefore we decline to take jurisdiction over those allegations of the petition.
Accordingly as to allegations 1 and 2, the petition shall be ordered dismissed. The third allegation, however, must be discussed more fully.
The state court records reveal that petitioner was convicted by a jury at Nos. 23, 53, and 54 March Term, 1957, Oyer and Terminer of Allegheny County, Pennsylvania. He was sentenced to 9 to 18 years in jail. Only the validity of the conviction at No. 53 (possession and control of narcotic drugs) is now before us.
Petitioner contends that the search and his resultant conviction was constitutionally defective. He contends that the evidence seized should have been suppressed under Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
Other than the allegation that there was "no probable cause for arrest, search and seizure" he does not say specifically why the search was defective. He merely argues that Mapp applies. Mapp, of course, was decided after petitioner's trial and is not retroactive in its application to convictions which had become final prior to Mapp. See Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965).
Petitioner contends, however, that since The Pennsylvania Supreme Court in 1971 ordered that he be permitted to file post trial motions nunc pro tunc that his conviction never became "final"
for purposes of Linkletter and therefore, ...