UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: May 14, 1968.
UNITED STATES OF AMERICA EX REL. FRANK MAYBEE, APPELLANT,
ROBERT W. DUGGAN, DISTRICT ATTORNEY FOR ALLEGHENY COUNTY AND JAMES P. MARONEY, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION, PITTSBURGH, PENNSYLVANIA
McLaughlin, Freedman and Seitz, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
Frank Maybee appeals from the dismissal below of his petition for a writ of habeas corpus seeking bail pending the outcome of the appeal of his conviction in the Pennsylvania state courts. Petitioner waived trial by jury and was found guilty on November 18, 1965 by Pennsylvania Judge Lloyd F. Weaver. Thereafter, petitioner attempted to secure his release on bail both in the Pennsylvania state courts and the United States District Court for the Western District of Pennsylvania. All of these attempts were unsuccessful. At the same time petitioner was prosecuting the direct appeal of his conviction through the Pennsylvania courts. This resulted in the reversal of his conviction and an order granting a new trial. Commonwealth of Pennsylvania v. Maybee, alias LeRoy Coleman and James McCray, 429 Pa. 222, 239 A.2d 332 (1968).
The reversal of petitioner's conviction and the order granting a new trial indicate that the exhaustion requirements of Title 28 U.S.C.A. § 2254 have not been met. The question of whether petitioner should be granted bail pending the outcome of his new trial is an issue that should be determined by the Pennsylvania state courts.
The judgment of the District Court will be affirmed without prejudice to petitioner's right to reapply to the appropriate Pennsylvania state court for his release on bail.
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