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UNITED STATES EX REL. HANKINS v. WICKER

March 13, 1984

UNITED STATES OF AMERICA ex rel. HAROLD LEE HANKINS, Petitioner
v.
EMANUEL WICKER, Respondent


Weber, D.J.


The opinion of the court was delivered by: WEBER

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 582 F. Supp.]

ORDER

 AND NOW this 13th day of March, 1984;

 IT IS HEREBY ORDERED that petitioner's request for leave to proceed in forma pauperis is GRANTED and the Clerk is directed to file the petition without prepayment of the filing fee;

 IT IS FURTHER ORDERED that the United States Marshal shall make expeditious service of this order, together with a copy of the petition, upon the respondent Emanuel Wicker; the Attorney General of the Commonwealth of Pennsylvania; and the District Attorney of Erie County by immediate certified mail, costs to be advanced by the United States;

 IT IS FURTHER ORDERED that within twenty (20) days of service of this order, respondent and the District Attorney of Erie County, Pennsylvania, shall respond to the allegations of the petition for writ of habeas corpus. The District Attorney shall address both the merits of the petition and exhaustion of state court remedies as required by 28 U.S.C. Section 2254(b) and (c). Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); United States ex rel Trantino v. Hatrack, 563 F.2d 86 (3d Cir. 1977); Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976). The answer shall comply with the requirements of Rule 5 of the Rules Governing Section 2254 cases in the United States District Courts. The District Attorney shall furnish this court with the state court records, including all relevant transcripts, all briefs filed by petitioner, and all written opinions of the courts.

 WEBER, D.J.

 Hankins was convicted in the Court of Common Pleas of Erie County, Criminal Division, on charges of robbery and theft on May 19, 1981, following a one day trial. He was sentenced to concurrent terms of imprisonment, the most severe of which was from five to ten years, on February 12, 1982. *fn1" He was removed to the State Correctional Institution at Huntingdon, Pennsylvania. A notice of appeal was filed by counsel for the petitioner on March 9, 1982. Hankins' appeal is currently pending in the Superior Court of Pennsylvania at No. 295 Pittsburgh, 1982. Oral argument was heard on January 24, 1984 but no disposition has been made. Hankins has also been sentenced to serve a term of ten to twenty years on an unrelated charge after the completion of the sentence arising from the judgment currently under attack. This latter sentence was imposed by the Court of Common Pleas of Crawford County.

 Hankins recites several grounds upon which the allegation of unlawful confinement is based. First, he asserts a violation of due process and equal protection because of a twenty-one month delay in the disposition of his direct appeal. Second, he contends that at trial he was denied the representation of counsel of his choice in that he was denied sufficient time to retain private counsel and was forced to proceed to trial represented by the Public Defender. He argues that as a result he was denied sufficient time to adequately prepare. Hankins contends that these circumstances amounted to a violation of his right to counsel guaranteed by the 6th and 14th Amendments. In a third and related averment, Hankins argues that he is being denied effective representation on appeal due to the absence of portions of the lower court record. And finally, Hankins alleges that he was arbitrarily denied the opportunity to file pretrial motions to suppress illegally obtained evidence.

 I. Exhaustion of State Remedies.

 Ordinarily, federal habeas corpus relief is only available after an exhaustion of state remedies. 28 U.S.C. § 2254(b). Federal courts must stay their hand and permit the state appellate process to take its course. Wilwording v. Swenson, 404 U.S. 249, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971). This assures appropriate deference to the state system in accord with traditional notions of comity. *fn2" It guarantees that the state system shall be afforded the opportunity to rectify its own errors as well as assume its proper place in the consideration of alleged constitutional deprivations. It is also well settled that this doctrine requires the exhaustion of remedies and not the exhaustion of the petitioner in his pursuit of appellate relief following a conviction. An inordinate delay in the state proceedings may form an adequate basis for federal habeas corpus relief. Section 2254(b) provides a statutory basis for an exception to the exhaustion requirement where it appears that a petitioner's state afforded right to a meaningful appeal has been frustrated. It provides, in pertinent part:

 
(b) An application for writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of ...

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