lies in the realm of speculation. It is significant to observe that thorough post-trial efforts have revealed only three additional eyewitnesses out of the estimated 45 persons who these additional witnesses claim were in the barroom at the time of the killing. The Commonwealth contends that all the eyewitnesses were produced and testified at the trial and the trial judge thought all of them had been produced.
We do find that in some aspects the investigation and preparation of this case were cursory and somewhat superficial; that various details, leads and clues were either overlooked or were not run down. The investigation was not an exhaustive, painstaking one notwithstanding the considerable time spent by Mr. Stevenson. We further find that during the trial Mr. Shaffer defended the relator vigorously according to his experience and judgment. The defense was not a pretense,- at least, at the time of the trial, the judge and district attorney could not have detected it as a fraudulent and false show, if it were one; nor can we now do so with any degree of certainty.
Present counsel argue that the alleged insufficiencies amounted to a denial of effective assistance of counsel to which relator was entitled during the vital period between appointment and trail.
Even if we assume this debatable proposition to be correct, nevertheless, we reach the conclusion that these alleged derelictions did not result in stamping the trial itself as a farce and mockery of justice. See Moore v. Dempsey, 1923, 261 U.S. 86, 43 S. Ct. 265, 67 L.Ed 543; Powell v. Alabama, footnote 5, supra; Brown v. Mississippi, 1936, 297 U.S. 278, 56 S. Ct. 461, 80 L. Ed. 682; Diggs v. Welch, 1945, 80 U.S.App.D.C. 5, 148 F.2d 667, certiorari denied 325 U.S. 889, 65 S. Ct. 1576, 89 L. Ed. 2002.
In the case of Diggs v. Welch, supra, it was stated that the 'absence of effective representation by counsel must be strictly construed. It must mean representation so lacking in competence that it becomes the duty of the court or the prosecution to observe it and to correct it. We do not believe that allegations even of serious mistakes on the part of an attorney are ground for habeas corpus standing alone. The cases where the Supreme Court has granted habeas corpus on the ground that there was no fair trial support this interpretation of the absence of effective representation. They are all cases where the circumstances surrounding the trial shocked the conscience of the court and made the proceedings a farce and a mockery of justice.' (80 U.S.App.D.C. 5, 148 F.2d 670). (Emphasis added.) The court then affirmed denial of the petition without a hearing.
If an act or inaction of the State violates the concepts of a fair trial, it offends against the due process clause. 'It is state action of a particular character that is prohibited.' Civil Rights Cases (U.S. v. Stanley) 1883, 109 U.S. 3, 11, 3 S. Ct. 18, 21, 27 L. Ed. 835. This is well expressed in U.S. ex rel. Darcy v. Handy, D.C.M.D. Pa. 1951, 97 F.Supp. 930, 940, where it was held that '(t)he Fourteenth Amendment is directed against state action, not against wrongs done by individuals who do not act for the state or under color of state authority. * * * the defense counsel qua lawyer is not however a state officer within the contemplation of the Fourteenth Amendment.'
And in Hudspeth v. McDonald, 10 Cir., 1941, 120 F.2d 962, 968, the court held: 'There is a vast difference between lacking the effective assistance of competent counsel and being denied the right to have the effective assistance of competent counsel. It is the denial of the right to have such assistance that gives the right to challenge a judgment of conviction by writ of habeas corpus.'
Thus we reach the further conclusion, again assuming the case was insufficiently prepared, that the relator was not denied due process by the violation of duty on the part of any state official, i.e., the trial judge, the prosecutor, or the police, and therefore, has failed to show that he is entitled to the writ.
As indicated above, with a life at stake, we thought that a hearing upon the averments of the petition was imperative. By so doing, however, we are not to be understood as condoning the practice of permitting convicts to put their counsel on trial after adverse results of their own trials have been reached. This particularly applies to assigned counsel in a capital case whose task is peculiarly onerous, thankless, and fraught with apprehension. A federal court cannot be used to measure the diligence used in preparing such a case for trial in the state court by counsel of relator's own choice; neither can it be used to try his legal capacity or ability in the trial of such case nor to examine his conscience.
We are now of the opinion that our responsibility to this relator terminated with:
First- the finding, which fact was also admitted, that competent legal counsel selected by relator was assigned to represent him and was given adequate opportunity to consult with him and prepare the case. As stated in Foster v. Illinois, 1947, 332 U.S. 134, 137, 67 S. Ct. 1716, 1718, 91 L. Ed. 1955, 'process of law in order to be 'due' does require that a State give a defendant ample opportunity to meet an accusation.' The state court certainly afforded relator this opportunity in the instant case.
Second- the finding that the trial itself was not a sham or a counterfeit of justice. As stated in Diggs v. Welch, supra, 148 F.2d at page 670, 'The only practical standard for habeas corpus is the presence or absence of judicial character in the proceedings as a whole.' The record of the trial in the light of the evidence offered and received on this rule has convinced this court of the presence of judicial character in the trial of the relator.
Relator also alleges that the Supreme Court of Pennsylvania violated his constitutional rights by failing to grant or direct a hearing on his petition for a writ of habeas corpus in that court. This court granted the hearing out of an abundance of caution in view of the severity of the penalty. Since we find that relator is not entitled to the writ we need not decide this question of law.
An order in conformity with this opinion will be entered.