United States of America Ex Rel. James Whiting v. Alfred T. Rundle, Superintendent, State Correctional Institution, Graterford, Pennsylvania

Third Circuit

United States of America Ex Rel. James Whiting v. Alfred T. Rundle, Superintendent, State Correctional Institution, Graterford, Pennsylvania

389 F.2d 47, 1968 U.S. App. LEXIS 8133

CourtCourt of Appeals for the Third Circuit

DecidedFebruary 7, 1968

Docket16806

StatusPublished

Cited by1 cases

This text of 389 F.2d 47 (United States of America Ex Rel. James Whiting v. Alfred T. Rundle, Superintendent, State Correctional Institution, Graterford, Pennsylvania) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States of America Ex Rel. James Whiting v. Alfred T. Rundle, Superintendent, State Correctional Institution, Graterford, Pennsylvania, 389 F.2d 47, 1968 U.S. App. LEXIS 8133 (3d Cir. 1968).

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OPINION OF THE COURT

PER CURIAM.

Appellant is serving a life term for murder imposed by the Pennsylvania State Court after the entry of a plea of guilty on his behalf by his attorney. He appeals from a denial of a writ of habeas corpus in the District Court. In his petition below he alleged, inter alia, that his plea was not intelligently made because he consented to plead guilty to murder in the Pennsylvania Court without being advised either by the court or his counsel as to an important consequence thereof, viz., that because he had previously been convicted of murder, a second such conviction rendered applicable the life sentence provision of the Pennsylvania Recidivist Statute. Act of June 24, 1939, P.L. 872, § 701, 18 P.S. § 4701. The appellant asserted other claims of violation of his constitutional rights. All these matters were first asserted in state court post-conviction proceedings and rejected without a hearing. The appellate court affirmed.

The District Court also denied relief without a hearing. The order of the District Court granting a certificate of probable cause shows that the judge in denying the writ had in effect made factual findings, contrary to the allegations of the petition, based on the records of the state court proceedings rather than on a complete evidentiary record. We think this procedure was not permissible in view of the issue tendered and in the light of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and United States ex rel. Darcy v. Handy, 203 F.2d 407 (3rd Cir. 1953); 28 U.S.C. § 2254, as amended by Act of November 2, 1966, 80 Stat. 1105.

The matter must be remanded to the District Court for an appropriate determination, which should include a decision concerning the issue of exhaustion of state court remedies. See United States ex rel. Singer v. Myers, 384 F.2d 279 (3rd Cir. 1967).

The judgment of the District Court will be reversed.

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OPINION OF THE COURT

PER CURIAM.

Appellant is serving a life term for murder imposed by the Pennsylvania State Court after the entry of a plea of guilty on his behalf by his attorney. He appeals from a denial of a writ of habeas corpus in the District Court. In his petition below he alleged, inter alia, that his plea was not intelligently made because he consented to plead guilty to murder in the Pennsylvania Court without being advised either by the court or his counsel as to an important consequence thereof, viz., that because he had previously been convicted of murder, a second such conviction rendered applicable the life sentence provision of the Pennsylvania Recidivist Statute. Act of June 24, 1939, P.L. 872, § 701, 18 P.S. § 4701. The appellant asserted other claims of violation of his constitutional rights. All these matters were first asserted in state court post-conviction proceedings and rejected without a hearing. The appellate court affirmed.

The District Court also denied relief without a hearing. The order of the District Court granting a certificate of probable cause shows that the judge in denying the writ had in effect made factual findings, contrary to the allegations of the petition, based on the records of the state court proceedings rather than on a complete evidentiary record. We think this procedure was not permissible in view of the issue tendered and in the light of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), and United States ex rel. Darcy v. Handy, 203 F.2d 407 (3rd Cir. 1953); 28 U.S.C. § 2254, as amended by Act of November 2, 1966, 80 Stat. 1105.

The matter must be remanded to the District Court for an appropriate determination, which should include a decision concerning the issue of exhaustion of state court remedies. See United States ex rel. Singer v. Myers, 384 F.2d 279 (3rd Cir. 1967).

The judgment of the District Court will be reversed.

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389 F.2d 47, 1968 U.S. App. LEXIS 8133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-ex-rel-james-whiting-v-alfred-t-rundle-ca3-1968.

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