Hastie, Chief Judge, and Freedman and Stahl, Circuit Judges.
The principal issue in this appeal is the complete retroactivity vel non of Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). Somewhat surprisingly the Supreme Court has not had occasion to speak directly on this aspect of Massiah, although virtually every other major decision in the area of criminal procedure has run the gauntlet of retroactive application. While the Court has tacitly given limited retroactivity to Massiah in cases which were still on direct appeal on May 18, 1964, the date of the decision,*fn1 we are faced with a trial which took place long before Massiah, or even Gideon,*fn2 became part of the lexicon of the right to counsel. We recite the facts of this case now.
Appellant Allison was sentenced in 1957 to life imprisonment for a murder committed in New Jersey on April 8, 1957. On April 27, 1957, Allison surrendered himself to a police officer in Vancouver, British Columbia, saying that he was wanted in connection with a crime in New Jersey.*fn3
The Canadian police obtained a statement about the crime from Allison.*fn4 (H.T. 1965, p. 7.) The New Jersey authorities were then informed of Allison's detention and, in order to extradite him, an indictment was promptly obtained on April 29 by the county prosecutor. Two detectives were dispatched to Vancouver to return Allison to New Jersey. Allison waived extradition. Exhibit RA-4.
Before leaving Canada, the New Jersey detectives interrogated Allison at length and secured a detailed written and signed confession on April 30.*fn5 On May 14, 1957, after Allison was returned to New Jersey, counsel was appointed to represent him. On May 24, 1957, Allison entered a plea of "not guilty." Shortly thereafter his counsel wrote to the county prosecutor advising that Allison wanted to retract the plea of not guilty and to plead non vult. (Exhibit RA-6.) Allison also signed the letter.
Under New Jersey law a plea of guilty to the charge of murder may not be accepted but a court may, in its discretion, accept a non vult (or nolo contendere) plea.*fn6 Such a plea relieves a defendant from a possible death penalty for only a jury may impose a death sentence.*fn7
The county prosecutor, observing that the state's case against Allison consisted principally of his confession, recommended that the court accept the non vult plea, Exhibit RA-7, which the court subsequently did. A sentence of life imprisonment was imposed on July 9, 1957.
In October 1964, Allison applied to the Morris County Court for post conviction relief, alleging that the taking of his statement by the New Jersey detectives unconstitutionally infringed upon his right to counsel. The court denied the petition in an oral opinion of January 29, 1965, the order of dismissal being issued March 26, 1965. A later petition for a writ of habeas corpus was denied by the same court in another oral opinion announced at the hearing on December 9, 1966, apparently on the basis of the conclusion that the cases expanding the right to counsel, decided subsequent to his conviction and sentencing, could not be invoked by Allison. The New Jersey Supreme Court dismissed an appeal from this denial for lack of merit on April 18, 1967, in a brief order without opinion.
The present appeal arises out of a petition for a writ of habeas corpus filed below on June 7, 1967. In his petition Allison again asserted that his interrogation by the New Jersey police, after his indictment, violated his right to counsel, relying upon Massiah v. United States, supra, and McLeod v. Ohio, 378 U.S. 582, 84 S. Ct. 1922, 12 L. Ed. 2d 1037 (1964), 381 U.S. 356, 14 L. Ed. 2d 682, 85 S. Ct. 1556 (1965).*fn8 The district court denied relief on May 10, 1968, in an unreported opinion, holding that a plea of guilty or non vult constitutes a waiver of the right to assert any constitutional defect in the proceedings before entry of the plea. Thus, the court did not reach the merits of the issue raised by Allison.
A case decided by the Supreme Court six months later, Smith v. Yeager, 393 U.S. 122, 89 S. Ct. 277, 21 L. Ed. 2d 246 (1968), makes it clear that a defendant may not be deemed to have waived a right which was either not in existence, or was of doubtful existence, at the time of the alleged waiver. In Smith the Supreme Court reversed this court's holding, 395 F.2d 245 (1968), that a habeas petitioner had waived the right to an evidentiary hearing. The Court reasoned that the defendant in Smith should not be in a worse position with regard to the subsequently developed clear right to a hearing because he had declined in an earlier proceeding to assert the presence of the unusual circumstances then required for the grant of an evidentiary hearing. Similarly, Allison should not be foreclosed from complaining now of interrogation violating the right to counsel because he failed to raise the issue at a time when the right had not been clearly established.
Nevertheless, although Allison's non vult plea did not constitute a waiver of his right to counsel claim, we hold that the district court's denial of relief should be affirmed because Allison's conviction became final long before Massiah v. United States was decided.*fn9
Before beginning the discussion of retroactivity we should point out that the fact that the interrogation of Allison by New Jersey police occurred in Canada does not preclude his assertion of constitutional rights. International law does not prevent the United States "from governing the conduct of its own citizens * * * in foreign countries when the rights of other nations or their nationals are not infringed." Skiriotes v. Florida, 313 U.S. 69, 61 S. Ct. 924, 85 L. Ed. 1193 (1941). That citizens of the United States may invoke the protection of the Constitution against actions of their government, although outside of the sovereign limits of the United States, is established by the landmark case of Reid v. Covert, 354 U.S. 1, 6-14, 77 S. Ct. 1222, 1 L. Ed. 2d 1148 (1957), and its progeny, Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 80 S. Ct. 297, 4 L. Ed. 2d 268 (1960), Grisham v. Hagan, 361 U.S. 278, 4 L. Ed. 2d 279, 80 S. Ct. 310 (1960), and McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S. Ct. 305, 4 L. Ed. 2d 282 (1960). Cf. Stonehill v. United States, 405 F.2d 738, 743 (9th Cir. 1968), cert. denied, 395 U.S. 960, 89 S. Ct. 2102, 23 L. Ed. 2d 747 (1969). In the Supreme Court cases, legislation depriving civilian military dependents and employees living on bases abroad of their right to a jury trial was struck down. In Reid, Mr. Justice Black said,
When the [Federal] Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. 354 U.S. at 6, 77 S. Ct. at 1225.
We are convinced that this principle applies with equal force to state conduct in a foreign jurisdiction involving a state prosecution. It hardly need be pointed out that a holding to the contrary might result in circumvention of the constitutional rights of criminal suspects found in foreign countries.
The guidelines controlling the retroactive application of newly announced decisions governing criminal procedure, as laid down by the Supreme Court in Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965), and succeeding cases,*fn10 lead us to conclude that the rule of Massiah may not be utilized to attack convictions which have cleared the ...