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United States v. Rundle.

April 19, 1968

UNITED STATES OF AMERICA EX REL. HENRY L. ANDERSON H-6046, APPELLANT,
v.
ALFRED T. RUNDLE.



Before KALODNER, GANEY and VAN DUSEN, Circuit Judges.

Opinion OF THE COURT

Per Curiam.

This is an appeal from a District Court order denying a petition for a writ of habeas corpus for the reasons ably and clearly set forth in Judge Body's complete opinion of September 29, 1967. However, we affirm the District Court order for appellant's failure to exhaust the postconviction remedy available to him under 19 P.S. ยง 1180-1 to 14, which has been effective since March 1, 1966, and not for the grounds in the September 29, 1967, opinion, which we need not consider.*fn1 See United States ex rel. Singer v. Myers, 384 F.2d 279 (3rd Cir. 1967), where Judge Kalodner said at page 284:*fn2

"It was settled in Case v. State of Nebraska, supra [381 U.S. 336, 85 S. Ct. 1486, 14 L. Ed. 2d 422] that where a state has a post-conviction statute providing for consideration of pertitions alleging denial of federal constitutional rights that the state courts should be afforded an opportunity to act with respect to the alleged denial.

"It is further settled that a federal court will not assume that a state court will construe a state post-conviction statute 'so as to make it inadequate and ineffective'. Bratt v. Crouse, 346 F.2d 146 (10 Cir. 1965), cert. den. 382 U.S. 932, 86 S. Ct. 324, 15 L. Ed. 2d 343.

"Whether 'available' state remedies have been 'exhausted' is a threshold question in every case in which a state prisoner seeks federal ...


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