316 F2d 68 United States Brennan v. A T Rundle

316 F.2d 68

UNITED STATES of America ex rel. John J. BRENNAN, Appellant,
v.
A. T. RUNDLE, Warden, State Correctional Institution.

No. 14258.

United States Court of Appeals Third Circuit.

Submitted March 4, 1963.

Decided April 22, 1963.

John J. Brennan, pro se.

James C. Crumlish, Jr., Dist. Atty., Philadelphia, Pa. (Gordon Gelfond, Asst. Dist. Atty., Arlen Specter, Asst. Dist. Atty., Chief, Appeals Division, F. Emmett Fitzpatrick, Jr., First Asst. Dist. Atty., Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and KALODNER and FORMAN, Circuit Judges.

PER CURIAM.

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The relator, a prisoner in state custody, appeals from an order of the court below dated October 23, 1962, denying him a writ of habeas corpus. The relator states that he is deprived of his rights because the authorities at his place of confinement will not permit him to use a typewriter to prepare a petition for habeas corpus to be filed in one of the Philadelphia County Courts. It is not clear what relief the relator seeks generally except that he desires to be relieved of his imprisonment. This court, however, can and must take judicial notice of the fact that a large number of handwritten briefs are filed in the Courts of Philadelphia County upon leave granted. It does not appear nor is it alleged in the petition that the relator has made any application to the appropriate Philadelphia County Court for leave to file a handwritten petition. Until this be shown and also that the court to which such an application has been made has refused it, the relator will not have exhausted his state remedies. Accordingly, the judgment appealed from will be affirmed. Cf. Gaito v. Prasse, Commissioner of Correction, Rundle, Acting Superintendent, et al., 312 F.2d 169 (3 Cir., 1963).