Freedman, Seitz and Aldisert, Circuit Judges.
This pro se appeal comes to us as the latest episode in this state prisoner's continuing siege of the state and federal judicial machinery. The tangled state of the pleadings is attributable to what one state judge characterized as "such a barrage of paper flak that it is difficult to fly through it with full awareness of the present procedural position at any given time."*fn1 From this melange, we have been able to glean the following:
On the day after pleading guilty to charges of receiving stolen goods and prison breach in a Pennsylvania court on September 17, 1966,*fn2 the appellant attempted a second escape from his jailers. As a result of this unsuccessful endeavor, he was indicted again for prison breach and assault by a prisoner, was convicted by a jury and sentenced to 10-20 years imprisonment.*fn3 The conviction and sentence were appealed to the Pennsylvania Superior Court which affirmed without opinion in Commonwealth v. Fletcher, 211 Pa.Super. 738, 235 A.2d 824 (1967). An application for allocatur to the Supreme Court of that state was denied February 13, 1968.
After this denial, the appellant filed a petition seeking a writ of habeas corpus in the court below.*fn4 The grounds for relief submitted in this federal petition were substantially the same as those presented before the state courts of Pennsylvania in his direct appeal.*fn5 The district court denied the petition on the sole basis that Fletcher had not utilized the review yet available under the Pennsylvania Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq., and therefore had not exhausted his state remedies. In effecting such disposition of the case, the lower court relied on our decision in United States ex rel. Singer v. Myers, 384 F.2d 279 (3 Cir. 1967), which intimated that recourse to state post-conviction procedures was an absolute sine qua non for seeking federal habeas relief.
Less than a month following this disposition in the lower court, the Singer decision was reversed without opinion by the Supreme Court at 392 U.S. 647, 88 S. Ct. 2307, 20 L. Ed. 2d 1358 (1968).*fn6 The import of this reversal was recently explored by this Court in United States ex rel. Howard v. Russell, 405 F.2d 169, 171 (3 Cir. 1969), where we concluded that:
"Once a federal habeas corpus petitioner's contentions have been presented to, and considered by a state's highest court, * * * the petitioner must be regarded as having exhausted available state remedies."
Admittedly, the facts in the present appeal do not stand as one with those presented in Howard where the Pennsylvania Supreme Court had passed upon the merits of the claims submitted to the federal forum. Here, because the conviction was not felonious homicide, as in Howard, the appellant could appeal as a matter of right only to the state Superior Court.*fn7 Further review by the state Supreme Court was possible only if "specially allowed by the Superior Court itself or by any one justice of the Supreme Court."*fn8 Fletcher did apply for such further review by the Supreme Court but his request was denied. Under these circumstances, the requirement of exhaustion set forth in Howard, that "a federal habeas corpus petitioner's contentions have been presented to, and considered by a state's highest court," is satisfied.*fn9
We hold that the appellant has effected full compliance with the state appellate apparatus; the state courts have thus been afforded full opportunity to adjudicate the matter. To require further recourse to the state post-conviction collateral machinery on issues already fully presented on direct appeal would be unnecessarily harsh and judicially wasteful. Roberts v. La Vallee, 389 U.S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967); Fay v. Noia, 372 U.S. 391, 435, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); Brown v. Allen, 344 U.S. 443, 447, 73 S. Ct. 397, 97 L. Ed. 469 (1953); United States ex rel. Master v. Baldi, 198 F.2d 113, 116 (3 Cir. 1952).
Accordingly, the order of the district court denying relief for failure to exhaust state remedies will be vacated and the case remanded for further ...