United States v. Banmiller

353 F.2d 85 UNITED STATES of America ex rel. John J. BOWER, Appellant, v. William J. BANMILLER, Superintendent, Eastern State Correctional Institution Philadelphia, Pennsylvania (Now A. T. Rundle, Superintendent). No. 15109. United States Court of Appeals Third Circuit. Argued Oct. 5, 1965. Decided Nov. 12, 1965. Richard L. Goerwitz, Jr., Philadelphia, Pa. (carmine J. Liotta, Philadelphia, Pa., on the brief), for appellant. Frank P. Lawley, Jr., Harrisburg, Pa. (Walter E. Alessandroni, Atty. Gen., Harrisburg, Pa., on the brief), for appellee. Before BIGGS, Chief Judge, and MARIS and STALEY, Circuit Judges. PER CURIAM. [1] The relator has presented two major issues for the consideration of this court upon his appeal but we find it unnecessary to discuss or dispose of them on the present record. The first issue arises from the fact that an individual was 'planted' in the prison in which the relator was confined prior to his trial for the apparent purpose of procuring incriminating statements from him and seemingly was successful in procuring such statements from him. These statements were used against the relator at his trial. See Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Cf. United States ex rel. Russo v. State of New Jersey and United States ex rel Bisignano v. State of New Jersey, 351 F.2d 429 (3 Cir. 1965). [2] The second issue raised by the relator is the failure of the State of Pennsylvania to supply or make sure that he had counsel to prosecute his appeal to the Pennsylvania state tribunals. [3] It appears, however, that the relator has not exhausted his state remedies in respect to these two issues for he has not raised them in the courts of Pennsylvania. See Fay v. Noia, 372 U.S. 391, 434-436, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Adequate post conviction remedies are still open to relator in the Pennsylvania state courts. [4] We deem it unnecessary to direct the court below to retain jurisdiction pending application by the relator to the Pennsylvania courts. Cf. United States ex rel. Altizer v. Hendrick, 347 F.2d 349 (3 Cir. 1965). Accordingly the judgment will be affirmed.