United States of America Ex Rel. Noah Willis Altizer v. Edward J. Hendrick, Superintendent of Philadelphia County Prisons

347 F.2d 349

UNITED STATES of America ex rel. Noah Willis ALTIZER, Appellant,
v.
Edward J. HENDRICK, Superintendent of Philadelphia County Prisons.

No. 15128.

United States Court of Appeals Third Circuit.

Argued May 6, 1965.

Decided June 23, 1965.

Charles H. Frey, Stradley, Ronon, Stevens & Young, Philadelphia, Pa., for appellant.

Gordon Gelfond, Asst. Dist. Atty., Philadelphia, Pa., for appellee (Joseph M. Smith, Asst. Dist. Atty., Chief, Appeals Div., F. Emmett Fitzpatrick, Jr., First Asst. Dist. Atty., James C. Crumlish, Jr., Dist. Atty., Philadelphia, Pa., on the brief).

Before KALODNER, HASTIE and FREEDMAN, Circuit Judges.

PER CURIAM.

1

In this petition of a Pennsylvania prisoner for a writ of habeas corpus it is contended that opportunity to appeal the original convictions in the state courts was abridged by the refusal of the state to provide counsel for the accused. The district court dismissed the petition because this contention had not at any time been submitted to a state court.

2

On this appeal counsel for the state has represented that the state will cooperate in the obtaining of a full and speedy hearing in the state courts on the merits of the petitioner's contentions.

3

In these circumstances, we think it will best serve all interests here involved to direct that the district court vacate its order dismissing this petition and stay further proceedings in this case until the petitioner shall have had an opportunity to present the question of denial of counsel to an appropriate state court.

4

The judgment will be vacated and the cause remanded for disposition in accordance with this opinion.