United States of America Ex Rel. Frank Gaito v. James F. Maroney, Warden

324 F.2d 673

• Court: Court of Appeals for the Third Circuit
• Decided: December 6, 1963
• Docket: 14156_1
• Status: Published

Opinions

PER CURIAM.

This appeal is from the denial of an application for habeas corpus arising out of a state court conviction.

In the present state of the record of this case, appellant has not as yet exhausted his state court remedy. There are two appeals in habeas corpus proceedings on his behalf pending in the Superior Court of Pennsylvania which raise the same constitutional questions as are before us. We consider it inappropriate for the federal courts to examine the merits of these problems before the state courts have finally disposed of the litigation.

Appellant’s situation is further seriously complicated by the fact that he is not now serving the sentence concerning which he complains. He is confined because of revocation of parole pursuant to a previous sentence for a separate offense. He contends that his parole was revoked because of his conviction of the crimes on which the instant petition is based. If that is correct, the fact that he is so confined would not bar him from applying for a writ of habeas corpus as he has. Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). The difficulty is that the record does not show that the reason for the parole revocation was appellant’s conviction of the crimes set out in this appeal.

Appellant’s attorneys, who were assigned to represent an indigent client after he had instituted this action pro se, are to be commended for their devoted and skilled handling of the complex problems surrounding this appeal.

The judgment of the district court will be affirmed.

Before BIGGS, Chief Judge, and McLAUGHLIN, KALODNER,

STALEY, HASTIE, GANEY and SMITH, Circuit Judges.