The opinion of the court was delivered by: SHAPIRO
The court granted petitioner leave to proceed in forma pauperis on his petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254 on September 5, 1985. The court granted petitioner's motion for appointment of counsel on February 13, 1986, and final argument on the merits of the petition was held March 7, 1986. The court grants petitioner's writ of habeas corpus for the reasons which follow.
Before the day of the hearing on petitioner's post-verdict motions, he had been arrested on an unrelated charge and incarcerated because he was unable to post bail. On June 4, 1984, petitioner entered a plea of guilty to the unrelated charge of theft by deception and was sentenced to a term of imprisonment of two to seven years with credit for time served. The minimum date for parole on this unrelated charge was December 9, 1984.
On November 5, 1984, Judge Gordon denied petitioner's post-verdict motions in the criminal case underlying this petition and sentenced petitioner to a total of four and one-half to nine years' imprisonment to run consecutive to the sentence imposed in the unrelated case. At the sentencing of petitioner, Judge Gordon neither revoked nor increased petitioner's bail, nor was there any discussion of such. On November 23, 1984, petitioner filed a notice of appeal with the Superior Court of Pennsylvania. That direct appeal of the conviction is still pending.
On or about December 9, 1984, petitioner was paroled on the unrelated conviction but he was retained in custody on Judge Gordon's sentence for theft and related offenses even though an appeal on that conviction was pending and the bail previously set had never been revoked.
On or about March 19, 1985, petitioner filed a pro se "Application for Release on Bail that is Still Valid" with the Superior Court of Pennsylvania. The Superior Court denied the application in a per curiam ruling on April 11, 1985, without stating any reasons.
On April 19, 1985, petitioner filed a pro se petition for a writ of habeas corpus in this court (Civil Action No. 85-2211); the petition presented petitioner's claim that he was entitled to be free on bail pending his direct appeal. On July 29, 1985, this court approved the Administrative Magistrate's Report and Recommendation denying the petition and dismissing it without prejudice for failure to exhaust state remedies.
On July 8, 1985, petitioner filed a petition for a writ of habeas corpus with the Supreme Court of Pennsylvania to obtain his release on bail.
On July 19, and July 22, 1985, petitioner's attorney in the criminal case underlying this petition informally contacted Judge Gordon and requested that petitioner be released on bail pending his appeal or, in the alternative, that a hearing be held to determine why petitioner had not been released on bail pursuant to Pa.R.Crim.P. 4011. Instead, Judge Gordon revoked petitioner's bail on July 23, 1985 without holding a hearing or stating any reasons. On July 30, 1985, petitioner's attorney in his criminal case filed a "Petition for Reconsideration of Revocation of Bail" with Judge Gordon. On August 7, 1985, Judge Gordon denied this petition, again without holding a hearing or stating any reasons for his decision.
On August 6, 1985, petitioner had filed various additional motions in his petition for a writ of habeas corpus filed with the Supreme Court of Pennsylvania. Petitioner's counsel in his criminal case also filed an application for release on bail pending appeal with the Superior Court of Pennsylvania on August 21, 1985. The Superior Court denied this application on September 11, 1985, in a per curiam ruling which again stated no reasons.
Petitioner filed another petition before this court on September 5, 1985; this court dismissed said petition without prejudice for failure to exhaust state remedies on October 23, 1985. On December 5, 1985, petitioner moved for reconsideration of this court's Order of October 23, 1985. In his motion, petitioner informed the court that on November 26, 1985, the Supreme Court of Pennsylvania denied his petition for a writ of habeas corpus filed July 8, 1985, and the motions that had been filed in that action on August 6, 1985. The Supreme Court of Pennsylvania did not state any reasons. Petitioner alleges and respondents do not deny that the federal constitutional issues raised in the petition before this court were presented to the Supreme Court of Pennsylvania in the action disposed of by that court on November 26, 1985.
The court is satisfied that petitioner has fairly presented his federal claim to the state courts and that he has exhausted available state remedies for purposes of 28 U.S.C. § 2254(b).
On December 31, 1985, this court granted petitioner's motion for reconsideration, and on January 13, 1986, the court vacated its prior dismissal of this action. The court added the Attorney General of the Commonwealth of Pennsylvania and the District Attorney for the County of Philadelphia as respondents, and ordered respondents to move, answer or otherwise plead to the petition by January 24, 1986. On January 23, 1986, respondents moved for an extension; the court extended the deadline to February 3, 1986. On February 3, 1986, respondent District Attorney of the County of Philadelphia filed a Response to the petition, apparently on behalf of all respondents. The court appointed counsel for petitioner on February 13, 1986.
Petitioner's appointed counsel moved for a writ of habeas corpus ad testificandum because respondents' response had put the merits of petitioner's release on bail into contention. Respondents contested the motion but alternatively requested a 14-day continuance to permit preparation of evidence on the merits of petitioner's release. Because the court found that the merits of petitioner's release on bail should be determined by hearing in state court on due notice and were not properly before the habeas court, ...