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December 18, 1973

Frederick D. GRAHAM
COMMONWEALTH OF PENNSYLVANIA ex rel. Jess D. COSTA, District Attorney, Washington County, Pa., and James O. Roupe, Warden, Washington County Jail, Pa., et al.

Snyder, District Judge.

The opinion of the court was delivered by: SNYDER

SNYDER, District Judge.

Petitioner was serving a sentence at Lewisburg Federal Penitentiary when, on March 27, 1973, he was notified that a detainer had been lodged against him by the District Attorney of Washington County, Pennsylvania. *fn1" On March 29, 1973, he requested the District Attorney that a final disposition be made of the indictment pending against him. *fn2" This request was made under Article III of the Interstate Agreement on Detainers (19 Pur. Stat. Pa. § 1431). *fn3"

 Petitioner's complaint, simply stated, is that since the Commonwealth has failed to bring him to trial within 180 days after he gave notice to the Washington County Court of his place of imprisonment and his desire for a speedy trial, the indictments against him should be declared void and a writ of habeas corpus granted. This same issue arose in the case of United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3rd Cir. 1969). There the Court per Judge Freedman held:

"Relator's contention that his state trial was held too late is founded on the Act of June 28, 1957, P.L. 428, providing for the disposition of detainers lodged against prisoners. The statute provides that whenever an untried indictment is pending in the Commonwealth against a person imprisoned in a correctional institution of Pennsylvania, 'he shall be brought to trial within one hundred eighty (180) days after he shall have caused to be delivered to the District Attorney of the County in which the indictment is pending and the appropriate court written notice of the place of his imprisonment and his request for final disposition to be made of the indictment * * *. The request of the prisoner shall be accompanied by a certificate of the warden * * * or other official having custody of the prisoner, ' giving the terms of his commitment, the time served and to be served and certain other relevant facts. The prisoner's demand for trial 'shall be given or sent by the prisoner to the warden * * * or other official having custody of him, who shall promptly forward it (together with the certificate) to the appropriate District Attorney and the court * * *. ' The Act then provides: 'In the event that the action is not brought to trial within the period of time as herein provided, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment be of any further force or effect, and the court shall enter an order dismissing the same with prejudice. '
Relator delivered his request for trial to the prison authorities on Friday, March 26, 1965. It was forwarded and delivered to the District Attorney on Monday, March 29, 1965. Relator's trial began on September 23, 1965, which was 181 days after he delivered his request to the prison authorities but 178 days from the time it was delivered to the District Attorney. The state trial court held that the 180 day period was to be computed from the date of the delivery of the notice to the District Attorney. The Pennsylvania Supreme Court's per curiam affirmance implicitly approved this conclusion. Relator's claim on this interesting question of statutory construction amounts to no more than a disagreement with the state courts' resolution of a state law problem. It does not present a federal question, for there is no claim that relator is 'in custody in violation of the Constitution or laws or treaties of the United States' 28 U.S.C. § 2254(a). We therefore would not have authority to grant relief even if we disagreed with the state courts' construction of the statute." See also United States ex rel. Krenkowitz v. Rundle, 317 F. Supp. 1378 (E.D. Pa. 1970).

 Further, if the Washington County Court has not ruled on the motion until the time of trial, the procedure utilized in Estep v. Commonwealth of Pennsylvania, Civil Action No. 73-855 (W.D. Pa. 1973) would be available. In Estep, a detainer was lodged against the petitioner on February 20, 1971 with the Michigan prison authorities based on a 1968 Washington County Indictment charging assault with intent to kill, burglary, larceny and aggravated assault and battery. On February 24, 1971, petitioner demanded pursuant to 19 Purdons Statutes 1431, that he be brought to trial within 180 days. No attempt was made to bring the petitioner there to trial by the Pennsylvania authorities until February 8, 1972. In Estep, Judge Knox of this court held:

"It appears that petitioner has prior to this action filed a motion in the Washington County court to dismiss the indictment. This motion was denied, although petitioner apparently received no notice of its disposition. On February 21, 1972, petitioner filed a petition for a writ of mandamus in the Pennsylvania Superior Court, naming the trial judge respondent and alleging a deprivation of due process. This petition was denied March 27, 1972.
Petitioner then sought habeas corpus relief in the Western District of Michigan, Northern Division, but that court denied relief for lack of jurisdiction. Finally, on August 14, 1972, petitioner obtained a writ of mandamus in the Michigan Court of Appeals, ordering Michigan prison authorities to 'hold for naught ' the Pennsylvania detainer. The District Attorney of Washington County represents to this court that he received no notice of those proceedings.
Under Braden v. Thirtieth Judicial Circuit Court, [410] US [484], 35 L. Ed. 2d 443, 93 S Ct [1123] (1973), this court clearly has jurisdiction over the parties. In Braden, the petitioner, serving a sentence in Alabama successfully obtained jurisdiction in Kentucky to challenge a Kentucky detainer lodged against him on the basis of a Kentucky indictment. The Supreme Court upheld jurisdiction noting:
'So long as the custodian can be reached by service of process, the court can issue a writ "within its jurisdiction" requiring that the petitioner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court's territorial jurisdiction. ' [ 93 S. Ct. 1123] 35 L Ed 2d at 453.
Nor does this court lack jurisdiction for failure of the petitioner to exhaust state remedies. Petitioner filed a motion in the trial court to dismiss the indictment. He then filed a petition for writ of mandamus in the Pennsylvania Superior Court naming the judge of Washington County respondent. When this was denied, the Prothonotary of the Superior Court informed petitioner by letter that he had exhausted his state remedies.
Exhaustion of state remedies is not an absolute requirement. The court may grant relief 'where there is either an absence of available state corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner. ' 28 U.S.C. 2254(b). Fay v. Noia, 372 U.S. 391, [83 S. Ct. 822] 9 L. Ed. 2d 837 (1963), established that the exhaustion of state remedies provision refers only to those remedies in existence at the time petitioner makes his contention. The doctrine is not ...

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