Before BIGGS, Chief Judge, and GANEY and SMITH, Circuit Judges.
This is an appeal from an order of the United States District Court for the Eastern District of Pennsylvania denying a petition for habeas corpus.
In August of 1957, eleven indictments for aggravated robbery were returned against the relator, Julius Mercer, and several other co-defendants. At his arraignment before the Court of Oyer and Terminer, Philadelphia County, on December 9, 1957, Mercer entered pleas of not guilty to seven of the indictments, and pleas of guilty to the remaining four indictments. Upon the request of the Assistant District Attorney, the Court directed verdicts of not guilty as to the first seven indictments.*fn1
At the trial of Mercer's co-defendants, testimony was presented to the effect that his car had been borrowed and used in the commission of the robberies, and that he had been paid for its use and had received a share of the proceeds.
On April 14, 1958, Mercer was brought before Judge Joseph Sloane for sentencing. The court opened this presentence hearing by inquiring as to the existence of testimony in the record of the trial of Mercer's co-defendants that would involve him in the robberies. Before any such testimony was read, Mercer's counsel, Malcolm Berkowitz, Esquire, stated to the court that he had advised Mercer to plead guilty on the basis of his, Berkowitz's, opinion as to the weight of the evidence which he, Berkowitz, believed to be available to the Commonwealth but that he had now been informed by Mercer that he wished to withdraw his guilty pleas.*fn2 Nonetheless Berkowitz made no actual request to withdraw the guilty pleas at this time.
The court once again inquired as to what evidence had been adduced at the trial of Mercer's co-defendants that would involve Mercer in the crimes. Robert Williams, Jr., Esquire, the Assistant District Attorney, then proceeded to read into the record an inculpatory statement of one co-defendant and asserted that it was "testimony" taken at the trial of the latter. In fact, it was not sworn testimony taken at a trial but a statement received by the police from the co-defendant. Mr. Berkowitz, Mercer's counsel, immediately pointed out to the Court that he did not recall any testimony such as that which the Assistant District Attorney had just read. Before argument on this point was further developed, the Court, apparently recalling Mr. Berkowitz's earlier remarks to the effect that Mercer wished to withdraw his guilty pleas, asked if Mercer in fact did now wish to change his pleas. Berkowitz in effect replied that if Mercer now wished to change his pleas it would be contrary to his, Berkowitz's advice. Mercer himself then requested or moved orally that he be permitted to "change" his pleas.*fn3 No reason for this request or argument in support of it was offered by Berkowitz or Mercer at this time and we cannot surmise the reason that it was made. The Court denied the request or oral motion.
Immediately after the denial of Mercer's own oral motion, Berkowitz directed the Court's attention to the reading of the "testimony" previously referred to into the record by the Assistant District Attorney and again voiced his objection to it, this time stating, "I do not recall that testimony." The Court replied, "I am taking Mr. Williams' word for it." Shortly thereafter, however, Berkowitz himself stated that there had been some testimony involving Mercer, although not that which the Assistant District Attorney had just read, and that it was to the effect that Mercer had in fact participated to some degree in the crimes, and that he, Berkowitz, believed Mercer to be an accessory both before and after the fact
At the request of the Court, the Assistant District Attorney then presented the Commonwealth's recommendation for sentence. Mercer's attorney objected to the recommended sentence stating that it was "not the sentence that Mr. Williams had advised me he would recommend to the Court at the time I advised Mr. Mercer to plead guilty." Berkowitz then stressed the limited extent to which Mercer had participated in the crimes, in an apparent effort to persuade the Court to impose a more lenient sentence than that proposed by the Assistant District Attorney, but made no further mention of what the Assistant had originally told him he would recommend, or of any agreement of leniency in return for pleas of guilty. The Court then proceeded to sentence Mercer to cumulative sentences of from twenty to forty years in accordance with a recommendation made by the Assistant District Attorney. No appeal was taken. Mercer is presently serving the sentences imposed on him in the Eastern State Penitentiary at Philadelphia.
Subsequently, Mercer filed a petition for a writ of habeas corpus with the Court of Common Pleas in Philadelphia, alleging that he was denied due process of law as a result of the refusal of the trial judge to permit him to withdraw his pleas of guilty and the Assistant District Attorney's error in referring to the statement of the co-defendant as testimony.
On October 2, 1959, a hearing on the petition was held before Judge Sloane, the trial judge, who expressed his willingness to hear testimony "in the presence of everybody here" on the issue presented. Judge Sloane then made the following statement as to what he understood that issue to be. He said: "As I understand it, under the petition for habeas corpus that Mr. Mercer filed * * * the issue here involved is whether Mr. Mercer pleaded guilty on the understanding that was given him by his then counsel, Mr. Berkowitz, that Mr. Berkowitz had a talk with Mr. Williams, the Assistant District Attorney, and that the agreement between Mr. Berkowitz and Mr. Williams was that Mr. Williams would recommend to the Court a sentence of a minimum of one year and a maximum of ten years and that that was the reason that Mr. Mercer pleaded guilty, otherwise he would not have pleaded guilty. * * * That is the way I understand the issue. That being so, I am ready to hear testimony in the presence of everybody here."
Mercer was represented at this hearing by his present counsel, Maxwell P. Gorson, Esquire. Mercer's former counsel, Berkowitz, was the only witness.*fn4 Following the direct examination, the Assistant District Attorney asked a few questions of Berkowitz, and the hearing was then, according to the transcript of the record, "rescessed to a future date, to be fixed." No future date was, in fact, ever fixed. An opinion concluding that the petition should be denied was filed on December 24, 1959*fn5 and an order was entered. In his opinion Judge Sloane considered and discussed the allegations contained in the petition and found as a fact that no promise of leniency had been made by the Assistant District Attorney. The order was affirmed on appeal.*fn6 Mercer then filed a petition for habeas corpus in the United States District Court for the Eastern District of Pennsylvania. No hearing was held. The order of the court below, denying the petition,*fn7 is the subject of the appeal at bar.
Mercer contends first that the refusal of the trial judge to permit a withdrawal of his guilty pleas, which had the result of depriving him of trial by jury, denied him due process of law under the Fourteenth Amendment. Mercer asserts that Judge Sloane denied his request that he be permitted to withdraw his guilty pleas without giving him an opportunity to be heard on this issue. The record, however, does not fully substantiate this assertion for when Mercer's attorney, Berkowitz, objected to the sentencing recommendation made by the Assistant District Attorney, the principle thrust of his argument was that the recommended sentences were too severe. Berkowitz's statement to the Court does suggest, however, that in his view, at least, a promise of a recommendation of lenient sentencing*fn8 had been made by the Assistant District Attorney but he did not amplify this nor assert directly that this was the basis for Mercer's guilty pleas. An implication to such effect does lie in the record, however. Although Berkowitz did not clearly press the issue he nonetheless took a specific exception to the order of Judge Sloane denying Mercer's oral motion.*fn9
Mercer next contends that he was denied an adequate opportunity at his state habeas corpus proceeding before Judge Sloane to explain why he desired to withdraw his pleas of guilty. As we have said, mR. Berkowitz testified on direct examination but the hearing was recessed as Mr. Williams, the Assistant District Attorney, was commencing cross-examination. Berkowitz had informed the Court earlier that he was scheduled to appear at another hearing that afternoon. It is apparent from the transcript, however, that the Court was somewhat reluctant to permit Williams to cross-examine Berkowitz himself, and might well have recessed the hearing on its own motion at least until another Assistant District Attorney could be made available to conduct the cross-examination of Berkowitz. It appears clearly from the record that only a recess was intended and that a future date for a continuation of the hearing was to be fixed. But, as we have indicated, about two and one half months later, without further hearing, Judge Sloane entered an order denying the writ. Mercer's present counsel should have proceeded vigorously to attempt to get a date set promptly for continuing the hearing but the record does not indicate that he did so. On the other hand, the Court of which ...