235 F2d 958 United States Ackerman v. C Johnston

235 F.2d 958

UNITED STATES of America ex rel. Alfred J. ACKERMAN, Appellant,

v.

Frank C. JOHNSTON, Warden, Western State Penitentiary.

No. 11875.

United States Court of Appeals Third Circuit.

Argued June 21, 1956.

Decided Aug. 7, 1956.

Rehearing Denied Sept. 13, 1956.

Marjorie Hanson Matson, Pittsburgh, Pa., for appellant.

Wendell G. Freeland, Asst. Dist. Atty., Pittsburgh, Pa., Samuel Strauss, Pittsburgh, Pa. (Edward C. Boyle, Dist. Atty. of Allegheny County, S. Donald Wiley, Asst. Dist. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, GOODRICH, Circuit Judge, and VAN DUSEN, District Judge.

PER CURIAM.

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1

The record demonstrates that the relator-appellant, Ackerman, has failed to exhaust his State remedies on the issue of denial of due process by reason of widespread pretrial publicity which is alleged to have created an atmosphere of hysteria and prejudice. It is conceded by Ackerman that the issue of such pervasive and unfavorable publicity was not submitted to the Superior Court of Pennsylvania, Commonwealth v. Ackerman, 176 Pa.Super. 80, 106 A.2d 886. See Rule 28. It is further conceded that that issue was not even referred to in the petition for leave to appeal to the Supreme Court of Pennsylvania. Careful consideration has been given to the arguments raised by appellant under II and IV of his brief.

2

Accordingly, the judgment of the court below will be affirmed.