UNITED STATES оf America ex rel. Joseph DALTON, a/k/a Daniel
Dalton, Appellant,
v.
David N. MYERS, Superintendent, State Correctional
Institution, Graterford, Pennsylvania.
No. 15037.
United States Court of Appeals Third Circuit.
Submitted Jan. 7, 1965.
Decided March 8, 1965.
Joseph Dalton, pro se.
Ward F. Clark, William J. Carlin, Dist. Atty., Doylestown, for appellee.
Before BIGGS, Chief Judge, and KALODNER and SMITH, Circuit Judges.
BIGGS, Chief Judge.
Dalton is appealing from a denial of a petition filed by him for a writ of habeas corpus. He alleges evidence, unlawfully seized by state officers, was introduced into evidence at his trial in the state court in contravention оf rights secured to him by the Fourth and Fourteenth Amendments of the Constitution under the opinion of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. earnings asserted to be accumulated, beyond
1. Internal Revenue 763.2
In determining whether corporate by government to have been accumulated permitting jury to include 531-533, 537. 643,
Dalton was convicted of burglary, larceny and conspiracy by the Court оf Oyer and Terminer of Bucks County. His conviction became final when sentence was imposed on June 15, 1962, almost a year аfter the Supreme Court's decision in Mapp, supra. Under these circumstances, Mapp applies retrospectively to Dalton. United States ex rel. Clark v. Maroney,
Dalton did not raise the issue of the alleged illegal search and seizure at his trial. He did attempt to raise it, however, on direct appeal. The Superior Court of Pennsylvania refused tо pass on the question on the procedural ground that this issue had not been raised in the trial court and was not, thereforе, cognizable on direct appeal. Commonwealth v. Dalton,
The сourt below examined the Pennsylvania law and arrived at the conclusion that while the Pennsylvania courts would not determine the issue on direct appeal, under the Pennsylvania decision of Commonwealth ex rel. Wilson v. Rundle,
Dalton then applied to the state courts for habeas corpus. His petition, however, was denied by the Court of Common Pleas of Bucks County on the procedural ground that he could not raise on collateral attack grounds of error that he had not raised at his trial or on appeal. He аgain petitioned the court below for a writ of habeas corpus and was again denied a hearing because he had failed to exhaust his available state remedies.
In Campbell, supra, this court, after analyzing Pennsylvania law, on January 17, 1964, came to the same conclusion on substantially similar facts as did the court below on Dalton's first petition for habeаs corpus. We held that the state court should first have a chance to change its position to conform to what wе deem to be the law. Subsequently, however, the Court of Common Pleas of York County denied the application for a writ of habeas corpus on the same procedural ground as did the Court of Common Pleas of Bucks County in the case at bar. The Superior Court affirmed that decision, sub. nom., Commonwealth ex rel. Ensor v. Cummings,
The question presently before us is whether we should again send Dalton baсk to the state courts to seek relief. It is now crystal clear that under Ensor, Dalton is entitled to a hearing under the law of Pеnnsylvania. However, at the time Dalton petitioned the court below in his second application Ensor had not yet been decided. On the contrary, it was settled in the Superior Court that Dalton was barred from raising the constitutional questions which he sought to have the Pennsylvania courts adjudicate. Commonwealth ex rel. Stoner v. Myers,
We are free nonetheless as a matter of comity to attempt tо maintain the delicate balance of judicial power between the Commonwealth of Pennsylvania and the United States and to remit Dalton to the state courts for his remedy. Compare United States ex rel. Drew v. Myers,
Notes
Dalton received a sentence of not less than two and a half years and not more than five years