In the Matter of Kenneth L. Osborn, Kenneth L. Osborn, Appellant.kenneth L. Osborn, Appellant, v. Harry E. Russell.united States of America Ex Rel. Kenneth L. Osborn, Appellant, v. Harry E. Russell.kenneth L. Osborn, C-3638, Appellant, v. Harry E. Russell, 434 F.2d 650 (3d Cir. 1970)Annotate this Case
Decided December 3, 1970
Kenneth L. Osborn, in pro. per.
David P. Truax, Asst. Dist. Atty., Meadville, Pa., for appellee.
Before HASTIE, Chief Judge, and McLAUGHLIN and ADAMS, Circuit Judges.
OPINION OF THE COURT
Relator Osborn has filed four petitions for Habeas Corpus in the District Court for the Western District of Pennsylvania. Chief Judge Wallace Gourley1 reviewed the papers filed by Osborn and because these papers did not indicate that Osborn had pursued remedies under the Post Conviction Hearing Act of the Commonwealth of Pennsylvania, the District Court denied the petitions on the ground Osborn had failed to exhaust state remedies.
However, it appears from the documents filed by Osborn in Civil Action No. 69-14 and from statements contained in the Commonwealth's brief to this Court that Osborn exhausted his state remedies on direct appeal and that the Pennsylvania courts indeed rejected on his direct appeal the same constitutional contentions Osborn now raises in the federal courts. It is well settled that no more is required of Osborn by the doctrine of exhaustion of remedies. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1963); United States ex rel. Fletcher v. Maroney, 413 F.2d 16 (3rd Cir. 1969); United States ex rel. Howard v. Russell, 405 F.2d 169 (3rd Cir. 1969).
Accordingly, the dismissal of the habeas corpus petitions will be reversed and the case remanded in order that the district court may verify that Osborn has exhausted the remedies provided by Pennsylvania, and thereafter determine the merits of Osborn's claims.
Since the entry of the order in question, Chief Judge Gourley has assumed Senior Judge status