United States ex rel. Clark v. Russell

303 F. Supp. 636

• Court: District Court, E.D. Pennsylvania
• Decided: August 26, 1969
• Docket: Misc. No. M. 69-292
• Status: Published

Opinion

MEMORANDUM AND ORDER

MASTERSON, District Judge.

In this habeas corpus petition, the relator, who is presently incarcerated at the State Correctional Institution at Huntingdon, asks this Court to accept jurisdiction on the ground that the state court has not expeditiously adjudicated his petition. According to the Philadelphia District Attorney’s answer, the relator was indicted on Bill Nos. 1339, 1340, 1341, 1342, September Sessions, 1966, charging Assault and Battery, Aggravated Assault and Battery, Assault and Battery with Intent to Murder. He was tried on January 17,1968, before the Honorable Herbert S. Levin, Court of Quarter Sessions of Philadelphia County. The relator was found guilty on Bill No. 1339 and was sentenced to a term of two to seven years. Relator’s petition for remand was granted by the Superior Court on May 27, 1968, and the trial court was instructed to hold a hearing to determine whether the relator intelligently waived his right to appeal.

The hearing was originally scheduled for August 1, 1969, but the District Attorney has informed us by letter, dated August 13, 1969, that the matter was continued until September 11, 1969, since the relator’s trial counsel, whose testimony was required at the hearing, was on vacation.

Under these circumstances, we will deny the relator’s petition for failure to exhaust state remedies, as it appears that a hearing in the state forum is reasonably imminent. 28 U.S.C. § 2254; see United States ex rel. Cash v. Brierley, 412 F.2d 296 (3rd Cir. 1969), opinion filed June 19, 1969; Frace v. Russell, 341 F.2d 901 (3rd Cir. 1965), cert. denied 382 U.S. 863, 86 S.Ct. 127, 15 L.Ed. 2d 101 (1965).