Adams, Max Rosenn, and Hunter, Circuit Judges.
Relator Nathaniel Watson petitioned for a writ of habeas corpus, attacking his convictions in the Pennsylvania Courts under three different indictments. The District Court granted the writ as to one of the indictments, but denied it as to the two others. United States ex rel. Watson v. Mazurkiewicz, 326 F. Supp. 622 (E.D.Pa.1971). Relator appeals from the District Court's order insofar as it denies the writ.
During 1964, as a result of three separate arrests, relator was indicted for seven separate crimes. On February 24, 1965, and May 24, 1965, relator pleaded guilty to all the indictments, following the advice of his counsel. Relator's cumulative sentences were two to ten years' imprisonment.*fn1
Relator was released from prison on parole on November 13, 1966, but was returned to prison on April 5, 1968, for parole violation. Shortly thereafter he sought post-conviction relief in the Pennsylvania courts, but was unsuccessful. Commonwealth v. Watson, 216 Pa.Super. 730, 257 A.2d 890 (1969). Federal habeas corpus proceedings followed. During the pendency of these federal proceedings, relator has again been released on parole.
Since relator pleaded guilty to the charges for which he was imprisoned,
"he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act."
McMann v. Richardson, 397 U.S. 759, 774, 90 S. Ct. 1441, 1450, 25 L. Ed. 2d 763 (1970); accord, United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3d Cir. 1970); United States ex rel. Sadler v. Commonwealth of Pennsylvania, 434 F.2d 997 (3d Cir. 1970). He must show that in advising the guilty pleas counsel exhibited lack of "normal competency." See Moore v. United States, 432 F.2d 730, 737, 737 (3d Cir. 1970); United States ex rel. Green v. Rundle, 434 F.2d 1112, 1113 (3d Cir. 1970). We agree with the District Court that relator has not met that burden.
1. No. 1128. Relator's indictment under No. 1128 resulted from a police search of his apartment on January 10, 1964, during which heroin was found in several places. The search was carried out under a search warrant which had been issued upon the following affidavit of probable cause:
"Information from a reliable informant who has been used in the past in making many arrests in the Illicit Narcotic Traffic."
Relator contends that his counsel was seriously derelict in advising the guilty plea without first attempting to suppress the evidence found by the police during the search.
The affidavit supporting the search warrant would today clearly be defective under Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). We agree with the District Court, however, that the pre- Aguilar cases*fn2 were not so clear that we can say that relator's counsel showed lack of normal competentcy in 1964-1965 in not moving to suppress the evidence. See Brady v. United States, 397 U.S. 742, 756-758, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); McMann v. Richardson, supra, 397 U.S. at 768-774, 90 S. Ct. 1441.
2. No. 1968. The indictment under No. 1968 arose out of the following circumstances: In November 1964 two Philadelphia policemen were ...