Curtis Terrell, petitioner-appellant, appeals from an order of the United States District Court for the Northern District of Ohio, Western Division, denying his petition for a writ of habeas corpus. The district judge denied the petition without an eviden-tiary hearing. Curtis Terrell, petitioner-appellant, has filed a motion to he released from confinement on bond pending appeal.
Terrell was tried before a jury in the Common Pleas Court of Summit County, Ohio, and convicted of assault with a deadly weapon. He was sentenced to a term of imprisonment for one to five years which sentence he began serving on September 23, 1966, and under which he is now confined in the Marion Correctional Institution (Marion, Ohio).
Terrell petitioned for a writ of habeas corpus in the United States District Court for the Northern District of Ohio, Western Division. He alleged the following grounds as being violations of his constitutional rights:
“(a) An incriminating statement was elicited from petitioner, while in police custody, without his being apprised of his constitutional right to remain silent and in the absence of counsel. The statement was admitted in evidence at the trial.
“(b) The statement was admitted in evidence at petitioner’s. trial absent its having met the requirements for testing the voluntariness of the statement as set by the U. S. Supreme Court in Jackson v. Denno (1964), 378 U. S. 368, 84 S. Ct. 1774.
“(c) The indictment in this case charging petitioner with shooting with intent to kill (Section 2901.23, Revised Code)will not support the herein conviction of assault with a deadly weapon.
“(d) Incompitent (sic) counsel.”
The district judge dismissed the petition upon motion of the respondent, without a hearing, for the reason that the petitioner had not exhausted his state remedies. (Section 2254, Title 28, U. S. Códe.) The judge also noted that the petitioner only made conclusory allegations of law *105without stating tlie facts in support of Ms conclusions. It’ was said by the judge that the petitioner’s claims of admission of a coerced confession and the representation of incompetent counsel reach a constitutional level. We consider that the claim that the crime of assault with a deadly weapon with which the petitioner was convicted was not. included in the offenses charged in the indictment also rises-to a constitutional level.
In dismissing the petition for the failure of the petitioner to exhaust Ms state remedies the district judge relied on the Ohio Post Conviction Act, Section 2953.21, Revised Code. Counsel for respondent-appellee advances the same argument — that the Ohio Post Conviction Act affords the petitioner a remedy to seek a vacation of Ms sentence before the OMo trial court.
The pertinent part of Section 2953.21, Revised Code, reads as follows:
“A prisoner in custody under sentence and claiming a right to be released on the ground that there was such á denial or infringement of Ms rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds relied upon, and asMng the court to vacate or set aside the sentence.” (Emphasis added.)
The Supreme Court of Ohio has given this section a very limited application. In State v. Perry, 10 Ohio St. 2d 175, the court held that a judgment was not void if the trial court had jurisdiction of the person of the defendant and of the subject matter of the crime charged. It was not voidable if the questions involved were or could have been adjudicated at the trial. Since the trial court had jurisdiction of both the person of the defendant and the subject, matter of the indictment and the questions raised by the petitioner with the exception of competent counsel could have been adjudicated at the trial, the judgment of conviction is neither void or voidable under State v. Perry. The petitioner could not have known that Ms counsel was incompetent until after the trial so that issue has not been *106adjudicated. The issues of coerced confession and defective indictment would have no standing in the state courts by reason of the decision in State v. Perry and the appellant has therefore exhausted his state remedy as to those issues. See Coley v. Alvis, 381 F. 2d 870 (C. A. 6).
The petitioner filed Ms petition pro se and we cannot hold him to the same high degree of pleading that we would a lawyer. We consider that the charge of coercion is sufficiently alleged to admit of an evidentiary hearing. Whether the offense of wMch the appellant was convicted is an included offense within the two counts of the indictment is a question of law.
The judgment of the District Court is vacated and the case remanded with instructions to the district judge to hold an evidentiary hearing on the issues presented by the appellant, consistent with this opinion.
The record did not disclose sufficient reasons for releasing the appellant on bond pending appeal and it was not allowed.