United States of America Ex Rel. Milton Bowers, Appellant, v. A. T. Rundle, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania, 361 F.2d 218 (3d Cir. 1966)

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US Court of Appeals for the Third Circuit - 361 F.2d 218 (3d Cir. 1966) Submitted April 14, 1966
Decided May 11, 1966
Rehearing Denied June 16, 1966

Appeal from the United States District Court for the Eastern District of Pennsylvania; Francis L. Van Dusen, Judge, 253 F. Supp. 926.

Milton Bowers, pro se.

Abner H. Silver, Asst. Dist. Atty., 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., for appellee.

Before McLAUGHLIN, HASTIE and FREEDMAN, Circuit Judges.


With respect to the first of appellant's contentions which concerns the failure at trial to move to suppress allegedly illegally seized evidence, we agree with the District Court that, under the circumstances of this case, Pennsylvania law governs appellant's right to attack his conviction under Bill No. 1664. Fay v. Noia, 372 U.S. 391, 438, 439, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); Henry v. State of Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965).

The District Court correctly found that the specific claim of alleged ineffective assistance of counsel was never directly presented to the state courts. However, in order that no possible misunderstanding regarding this might arise and based on our own examination of the record before us, we find no substantial support for the assertion.

Finally, there was no abuse of discretion by the District Court in this matter.

The judgment of the District Court will be affirmed.