182 F2d 940 United States Spader v. C J Burke

182 F.2d 940

UNITED STATES of America ex rel. Albert SPADER, Appellant,
v.
C. J. BURKE, Warden, Eastern State Penitentiary, Philadelphia, Pennsylvania.

No. 10158.

United States Court of Appeals Third Circuit.

Argued May 22, 1950.

Decided June 2, 1950.

Appeal from the United States District Court for the Eastern District of Pennsylvania; Allan K. Grim, Judge.

Albert Spader, pro se.

James W. Tracey, Jr., John H. Maurer, Philadelphia, Pa., for respondent.

Before GOODRICH, McLAUGHLIN, and HASTIE, Circuit Judges.

PER CURIAM.

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This is an appeal from a denial of a petition for habeas corpus on the part of petitioner entered in the United States District Court for the Eastern District of Pennsylvania. The order of the District Judge denies the petition for the reasons set forth in the opinion and order of Judge Frederick V. Follmer in the same court filed December 15, 1947. However, it now appears that between the time of the entering of Judge Follmer's order and the order complained of petitioner had asked for and been denied a writ of certiorari to the Supreme Court of Pennsylvania, thus exhausting his final attempt of consideration of his case through state channels. See Pennsylvania ex rel. Spader v. Burke, 1949, 338 U.S. 837, 70 S.Ct. 48. The problem is, therefore, one with which a federal judge must deal. It is necessary, therefore, that the order appealed from be vacated and the case remanded for such consideration as is indicated in view of the exhaustion by the petitioner of his state remedies.