The petition for rehearing filed by Jeddy Wilkins the relator-appellant in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
*519We affirmed the District Court's denial of relator's petition for a writ of habeas corpus for the reason that he has failed to exhaust presently available remedies in the Pennsylvania courts-the Pennsylvania Act of April 22, 1903, P.L. 245 § 1, 19 P.S. § 861, or the writ of error corcuin nobis.1
The relator does not dispute the availability of these remedies but merely contends, in disregard of Pennsylvania decisions, that they are not "proper" here. He further urges that in his habeas corpus proceedings in the Pennsylvania courts they were alerted to the abuse of due process now complained of in his federal habeas corpus action and that he has accordingly "exhausted his state remedies."
It is incumbent on federal courts to ascertain whether states afford an available remedy which has not yet been exhausted to correct an abuse of due process in the administration of their criminal laws.
It is not the function of federal courts to question the particular mode of relief which a state deems appropriate to remedy an abuse of due process, nor to substitute the federal concept of the scope of available remedies -for that which the state courts may entertain. The Pennsylvania Supreme Court, for example, because of the view which it entertains with respect to the scope of the habeas corpus writ, has on occasion, required, in first degree murder convictions, that the applicant for relief resort to the provisions of the Pennsylvania Act of 1903 in that court.
Thus, in Commonwealth ex rel. Harris v. Burke, 374 Pa. 43, 96 A.2d 909 (1953) where it was found that "The facts presented by the relator on this appeal would seem reasonably to justify his claim that he is entitled to some relief, but he has mistaken his remedy," the Supreme Court, in affirming the order of the court below dismissing relator's petition for a writ of habeas corpus, pointed out that application for relief could be made to it under the Act of 1903.2 Pursuant to the Court's suggestion the relator then successfully invoked the provisions of the Act of 1903, and was ultimately granted a new trial. Commonwealth v. Harris, 1 Pa.Dist. & Co. R.2d 143 (1954).
One final comment. In the instant case, the Pennsylvania Supreme Court in affirming on appeal the order of the court below dismissing the appellant's petition for a writ of habeas corpus, 401 Pa. 347, 164 A.2d 333 (1960), cert. den. 364 U.S. 944, 81 S.Ct. 464, 5 L.Ed.2d 374 (1961), held that the issue presented, as to whether the finding of the trial court that the appellant was guilty of murder in the first degree, was supported by the evidence adduced following his plea of guilty, was reviewable only on appeal, and not in a habeas corpus proceeding. It dismissed without discussion the relator's additional point whether the lower court had erred in denying the writ of habeas corpus without taking testimony. These were the only two points presented in terms to the Supreme Court.
. The Act of 1903 permits direct application for relief to the Supreme Court of Pennsylvania in first degree murder convictions whenever after discovered evidence creates a substantial doubt as to guilt. The remedy afforded by the Act of 1903 is not exclusive since the convicted murderer may, if he so desires, seek a writ of error corccm nobi.s in the court in in which he was convicted.
. In this case, a jury in 1926 returned a verdict of guilty of murder in the first degree on its finding that a bullet from the relator's revolver had killed a policeman. In 1947, a ballistic expert of the Philadelphia Police Department, following an investigation, reported that the fatal bullet could not have been fired from the relator's gun. Thereafter, the relator instituted habeas corpus proceedings. It may be noted parenthetically that ballistic experts were not available to testify at the time of the 1926 trial.