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UNITED STATES EX REL. LOPINSON v. MARKS

March 8, 1976

UNITED STATES ex rel. JACK LOPINSON F-0276
v.
RONALD MARKS, Superintendent, State Correctional Institution at Graterford



The opinion of the court was delivered by: LORD, III

 In 1965, a jury found relator guilty of the murders of his wife, and business partner. His accomplice, Frank Phelan, pleaded guilty to both murders and was the principal witness against relator. The petition alleges ten grounds in support of relief. The United States Magistrate concluded that all ten grounds were without merit and recommended dismissal of the petition without hearing. As to eight of these, *fn1" after an independent review, we hereby adopt the report and recommendation of the United States Magistrate. With respect to the remaining grounds, we held an evidentiary hearing on October 6, 1975. After consideration of the evidence and arguments of counsel, we will dismiss the petition.

 I. The Alleged Wiretaps

 Relator asserted as one ground for relief that before trial he was denied tapes and/or transcripts of certain conversations between Frank Phelan and himself which had been obtained as the result of police wiretaps. At the hearing of October 6, 1975, there was absolutely no evidence presented which suggested the existence of any such wiretaps. The lone witness called by relator, Richard Sprague, Esquire, who was the prosecutor in the murder trial, categorically denied any knowledge of any interceptions or wiretaps involving relator and Frank Phelan. In the absence of any facts to support this ground, we conclude that it is meritless.

 II. The Brady Argument.

 In his sixth ground, relator states:

 
"The prosecutor refused to disclose to Petitioner evidence and reports in the prosecutor's possession, which were favorable to the defense, concerning the Commonwealth's chief witness, Frank Phelan, the alleged co-conspirator and accomplice of Petitioner. Despite Petitioner's requests, before and after Frank Phelan's testimony, the Trial Court refused to allow Petitioner to retain a psychiatrist and refused to direct the prosecutor to turn over to the defense psychiatric reports on Frank Phelan. The prosecutor also withheld all other information in his possession concerning Frank Phelan that was or may have been helpful to the defense."

 In essence this ground may be distilled into two subparts. The first concerns the state court's refusal to appoint a psychiatrist to examine Frank Phelan. This ground was dealt with fully and fairly by the Pennsylvania Supreme Court, Commonwealth v. Lopinson, 427 Pa. 284, 305, 234 A.2d 552 (1967), and by the United States Magistrate in his report. We are satisfied that there was no constitutional error.

 Secondly, embodied in the sixth ground is the question of whether the prosecution withheld information in its possession which would have been helpful to the relator. Since no evidence has been demonstrated to show that there was anything potentially helpful other than the psychiatric reports on Frank Phelan, the issue boils down to this: Were the refusals by the prosecutor and the trial court to make available to relator, upon his request, psychiatric reports concerning Frank Phelan a violation of the due process clause of the fourteenth amendment as explicated in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and its progeny?

 After a thorough review of the state court record we are convinced that relator has never given the Supreme Court of Pennsylvania a "fair opportunity to consider" this claim as required by 28 U.S.C. ยง 2254(b) (1970) *fn2" and Picard v. Connor, 404 U.S. 270, 276, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). *fn3"

 In his petition and at oral argument, relator has directed us to certain portions of the state court record where he asserts this ground was raised. In his petition, relator refers to a number of motions made to the lower court before, during and after trial. These are of no help to relator since exhaustion requires presentation of the issue to the highest state court from which relief is available. See Williams v. Missouri Department of Corrections, 463 F.2d 993, 995 (8th Cir. 1972); Thompson v. Peyton, 406 F.2d 473, 474 (4th Cir. 1968). Similarly relator refers to his petition for a writ of certiorari to the United States Supreme Court. However, the mere inclusion in a petition for writ of certiorari of a ground not considered by the United States Supreme Court and never presented to the state supreme court does not satisfy the requirement of state court exhaustion.

 Relator points to his appeal to the Pennsylvania Supreme Court and also his petition for re-argument. An analysis of the papers reveals quite clearly that the Brady argument being pursued here was not raised there. Point 8 in the Brief for Appellant before the Supreme Court of Pennsylvania is headed: "The Court erred in refusing to permit a defense psychiatrist to examine the witness Frank Phelan and in refusing to investigate the question of his competency." This is the closest relator comes to raising his Brady argument in his brief; our judgment is that it is insufficient. *fn4"

 In his petition for re-argument, relator quotes a portion of the Pennsylvania Supreme Court's opinion and then proceeds to demonstrate certain "misapprehensions" on the part of the court:

 
"1. Appellant's Counsel were prohibited by the Court from interviewing Dr. John G. Torney, the psychiatrist appointed by the Court to examine Phelan until March 1, 1965, when the trial was practically over and even at that time Dr. Torney was directed not to furnish ...

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