Kalodner, Forman and Stahl, Circuit Judges.
Appellant Chambers, having exhausted his state remedies, unsuccessfully sought a writ of habeas corpus in the district court.*fn1 No evidentiary hearing was held below. This appeal followed.
In his petition, appellant alleged that his state convictions on charges of armed robbery and receiving stolen goods*fn2 were constitutionally defective for a number of reasons:
(1) There was no probable cause for his arrest;
(2) The search of the car in which he was a passenger at the time of his arrest was invalid on the ground that it was made without a warrant and was not incident to the arrest, even if the arrest was lawful;
(3) The search of his home was invalid, even though a search warrant had been obtained, because the warrant did not describe the product of the search which was admitted in evidence; and
(4) "The belated appointment of counsel rendered his services ineffective in that he was delegated to represent petitioner en route to the courtroom the day of the trial."*fn3
The district court concluded that the first three grounds did not violate appellant's constitutional rights.
With respect to the Sixth Amendment claim of ineffectiveness of counsel, the court said that this "contention * * * is without merit," citing In re Petition of Ernst, 294 F.2d 556 (3d Cir. 1961), and United States ex rel. Peterson v. Russell, 266 F. Supp. 93 (W.D.Pa.1967).*fn4 The same contention as to ineffective counsel had been made in the habeas corpus proceeding in the state court*fn5 and was rejected in an opinion, dated December 2, 1966,*fn6 by Judge Graff, who had also been the trial judge.
We would dispose of this appeal on the well-reasoned opinion of Judge Marsh below were it not for the fact that following the date of that opinion (March 6, 1968), we established for the first time a definite standard for determination of the issue of ineffective counsel in belated appointment cases: United States ex rel. Mathis v. Rundle, 394 F.2d 748 (May 7, 1968). In a supplemental brief filed by appellant, he relies directly on Mathis for the requested relief. Neither the lower state court opinion nor the decision below discussed specifically the late appointment aspect of appellant's petitions.
Prior to Mathis this court had not dealt expressly with the issue of burden of proof where the claim of ineffective counsel was bottomed on hasty appointment.*fn7 In Mathis,*fn8 following the lead of the Fourth Circuit,*fn9 we said that the belated appointment of counsel is inherently prejudicial and makes out a prima facie case of denial of effective counsel, with the burden of proving absence of prejudice shifted to the prosecuting authorities.
At first blush it would appear that only an evidentiary hearing, in which the state adduces the testimony of the trial counsel and other evidence to rebut the taint of prejudice, can be sufficient to overcome the prima facie presumption of ineffective counsel. A closer examination of the full scope of the Fourth Circuit rule we have chosen to follow discloses that denial of effective representation may also be refuted where the "record" contains "adequate affirmative evidence to overcome the presumption of harm from the lack of time for preparation"*fn10 by appointed counsel: Fields v. Peyton, 375 F.2d 624, 628 (4th Cir. 1967).*fn11 We construe this to mean that the prima facie ineffectiveness or the inherent prejudice due to late appointment of counsel may properly be overcome either by evidence produced by the state in an evidentiary hearing showing that there was no prejudice or by adequate affirmative proof otherwise appearing in the record demonstrating that the appellant was not prejudiced. We believe this is a logical approach which is fair to a petitioner seeking relief and at the same time comports with sound judicial administration.
The alternative methods of negating the prima facie harm from a belated appointment are of particular importance in the present case because the Commonwealth made no attempt in either the state or federal habeas corpus proceeding (as had been done in Mathis) to produce evidence showing that the appellant was not prejudiced by the late appointment of counsel.*fn12 Therefore, this court must either find from an examination of the record before us that there is adequate affirmative ...