KRAFT, District Judge.
Relator, a state prisoner, was convicted upon his plea of guilty, on April 23, 1964, to eleven bills of indictment charging him with aggravated robbery and related crimes. He was sentenced from five to ten years on two indictments and one to ten years on a third. All sentences were to run consecutively. On May 18, 1964, one of the five to ten year sentences was vacated and reduced to one to ten years.
In his present petition, relator alleges: (1) that his plea of guilty was not voluntarily made because he was then undergoing a psychomotor epileptic seizure; (2) that the state post-conviction judge failed to accord him a full and fair hearing on his petition.
The second ground is untenable, since it does not furnish a basis for federal habeas corpus relief. Any alleged inadequacies in the state post-conviction procedure are immaterial because the relator has been given a full and complete federal evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 316, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).
Relator also seeks to avail himself of the recent holding of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (June 2, 1969), wherein the Court reversed the state court "'because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.'"
In reaching its decision, the Supreme Court cited and quoted with approval
the holding of the Pennsylvania Supreme Court in Com. ex rel. West v. Rundle, 428 Pa. 102, 105-106, 237 A.2d 196, 197 (1967) which reads as follows:
"A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences."
In the instant case it is manifest from the record that no examination of the defendant was conducted by the trial court to ascertain whether the relator understandingly and voluntarily entered his pleas of guilty. However, the Pennsylvania Supreme Court has recently held that West is not to be applied retroactively,
Com. v. Cushnie, 433 Pa. 131, 249 A.2d 290 (Jan 15, 1969) and that in all cases tried before West was decided the burden remained on the defendant to establish that he did not enter his guilty plea knowingly. "In fact, in Commonwealth v. Coleman, 430 Pa. 438, 243 A.2d 328 (1968), a case where the guilty plea was entered in 1965, after our decision in Barnosky,3 we indicated that the burden of proof remained on the defendant."
Moreover, that the matter is one of credibility and the hearing judge may refuse to believe the defendant's version of what happened.
In Boykin, the United States Supreme Court referred to McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969), which reversed a United States district judge, who accepted a guilty plea and failed to comply with Rule 11 of the Federal Criminal Rules. Subsequently, on May 5, 1969, in Halliday v. United States, 394 U.S. 831, 89 S. Ct. 1498, 23 L. Ed. 2d 16, the United States Supreme Court declined to apply McCarthy, retroactively and stated:
"We hold that only those defendants whose guilty pleas were accepted after April 2, 1969, are entitled to plead anew if their pleas were accepted without full compliance with Rule 11."