Smith and Freedman, Circuit Judges, and Wortendyke, District Judge.
Relator, after exhausting his state remedies, applied for a writ of habeas corpus in the district court. After an evidentiary hearing the district judge denied the petition*fn1 but granted a certificate of probable cause under 28 U.S.C. § 2253.
Relator was charged in the Philadelphia Court of Quarter Sessions with separate acts of aggravated robbery in four bills of indictment. In three of these he was indicted with a codefendant, one Wilson, and in the fourth indictment was charged alone. On February 28, 1958, he pleaded guilty to the first three indictments and on March 20, 1958, after a trial by a judge without a jury was found guilty on the fourth charge. Shortly thereafter successive sentences were imposed on the four indictments.
Relator's able court-appointed counsel have presented a number of attacks on the judgments.
At the trial on the fourth indictment, the court admitted in evidence the identification of the relator by the victim of the holdup, who had previously identified him in a police lineup in which he was forced to appear against his will and was denied permission to have his counsel present. There had been a number of lineups, at least one of which was held after his arraignment.
At the time of the argument before us, when relator pressed the unconstitutionality of the refusal to permit counsel at the lineups, the Supreme Court had not yet passed specifically on the question.*fn2 Since then, on June 12, 1967, the decisions were announced in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 and Gilbert v. State of California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178, which held that an accused is entitled to the attendance of his counsel at a police lineup. But the Supreme Court also decided in the companion case of Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), that the doctrine of the Wade and Gilbert cases is prospective only and its application is limited to cases in which lineups without counsel occurred after June 12, 1967. Since the lineups here occurred many years prior to Wade and Gilbert, the doctrine which they announced prospectively is inapplicable to the relator.
Relator is not precluded, however, from inquiry into the "totality of the circumstances" surrounding the lineups in order to determine whether the procedures were so unfair as to deprive him of a fair trial. Stovall v. Denno, supra at 302, 87 S. Ct. 1951; and see Palmer v. Peyton, 359 F.2d 199 (4 Cir. 1966), cited with approval in Stovall at 302 of 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199. But he does not allege that the totality of the circumstances surrounding his lineups was fundamentally unfair and the record discloses no unfairness in the procedures employed once the validity of the lineup is accepted, as it must be. He never appeared alone in a lineup, nor did the police make any suggestions conducive to mistaken identification to witnesses. He was indeed required to repeat the words allegedly spoken by the holdup man, but the same requirement was imposed on the others in the lineup, and the Supreme Court has decided that this does not constitute either an invasion of constitutional rights, United States v. Wade, supra at 221 of 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 or fundamental unfairness, Stovall v. Denno, supra at 302 of 388 U.S. 293, 87 S. Ct. 1967.
Relator's claim therefore falls with the rejection by the Supreme Court of a retroactive application to the doctrine of Wade and Gilbert.
On February 26, 1958, the case against relator and his codefendant, Wilson, on the first three indictments was called for trial. Wilson's counsel appeared, but relator's counsel was absent because of illness. The record shows that relator's case was informally continued and that the trial judge then accepted Wilson's change of plea to guilty. The judge thereupon heard the evidence of a police officer who read Wilson's confession which repeatedly mentioned relator as an accomplice in the three robberies. During the reading of the confession the prosecutor emphasized on several occasions relator's participation in the robberies. Two days later, on February 28, 1958, relator appeared with his counsel before the same judge. With the advice of his counsel, whom he had told of the events of February 26, relator changed his plea to guilty to the first three indictments, without any reference to the prior proceedings or any indication that they had in any way influenced the pleas of guilty.
In these circumstances there is no merit in relator's claim that his plea of guilty was the result of his deprivation of counsel two days earlier. On the contrary, the record clearly shows that there were no proceedings against him on the prior occasion, which was limited to Wilson's change of plea and the taking of some evidence dealing with the sentence to be imposed upon him. It was entirely appropriate for the judge at that time to elicit whatever information was available relating to Wilson's sentence. In any event, even if there had been any impropriety in the earlier proceeding, relator waived it when he entered his plea ...