United States of America Ex Rel. Verle G. Conard v. James F. Maroney, Superintendent of the State Correctional Institution at Pittsburgh

387 F.2d 362, 1967 U.S. App. LEXIS 4178

• Court: Court of Appeals for the Third Circuit
• Decided: December 13, 1967
• Docket: 16594
• Status: Published

Opinion

OPINION OF THE COURT

PER CURIAM:

In the instant ease the District Court denied, without hearing, the appellant’s petition for writ of habeas corpus which asserted claims that he was denied due process in these respects: (1) he was arrested without a warrant; (2) there was a delay in granting him an immediate preliminary hearing; (3) he was cross-examined at his trial as to prior convictions; (4) the trial judge refused to grant him a continuance to enable him to present alibi testimony; and (5) he was not, at his State trial, afforded right of confrontation of witnesses.

The District Court in its opinion, held that the appellant had failed to allege facts showing that the police lacked probable cause for his arrest without a warrant, or that he had been prejudiced by delay in granting him a preliminary hearing, at which he was represented by counsel.

It also found that the appellant had not sought post-conviction review of his asserted right of confrontation under the post-conviction remedy afforded by the Commonwealth of Pennyslvania, 19 P.S. § 1180-2.

The Superior Court of Pennsylvania in Commonwealth v. Conard, 206 Pa.Super. 33, 211 A.2d 14 (1965), after ex haustive discussion of the appellant’s first four claims found that they were without factual or legal merit. The District Court did not err in coming to the same conclusion.

Further, the District Court did not err in holding that the appellant is required to exhaust the available Pennsylvania post-conviction remedy with respect to any constitutional claims which he may desire to present before he is entitled to federal habeas corpus relief.

For the reasons stated the Order of the District Court denying the writ of habeas corpus will be affirmed.