JOSEPH S. LORD, III, District Judge.
On April 23, 1966, a jury in the Court of Quarter Sessions of Lehigh County found Robert Boyd guilty of murder in the second degree (Indictment No. 114, April Sessions, 1966). Following this verdict Boyd briefly conferred with his counsel and then indicated, through his counsel, that he did not desire to appeal from the verdict and was prepared for the imposition of sentence. The trial judge questioned the defendant, and the latter stated that he comprehended his counsel's advice regarding a possible appeal, and that he wished to file no posttrial motions, to pursue no appeal and to be sentenced immediately. The court proceeded to sentence Boyd to imprisonment of not less than ten and not more than twenty years.
On July 8, 1966, long after the time for filing post-trial motions had elapsed, Boyd, without the aid of counsel, petitioned the trial court for the Notes of Testimony of his trial. On July 12, 1966, that court ordered that the Notes of Testimony of the trial be transcribed and a copy be delivered to Boyd. The court stenographer filed the notes of testimony of the trial on September 15, 1966, and on the following day a copy was sent to Boyd.
In December, 1966, Boyd initiated a series of attempts in the state courts to secure leave to file post-trial motions attacking his conviction nunc pro tunc. However, after an evidentiary hearing in the Court of Quarter Sessions, Lehigh County, in part directed to the issue of whether Boyd had voluntarily and knowingly waived his right to file post-trial motions, the Court of Quarter Sessions, the Superior Court of Pennsylvania, and the Supreme Court of Pennsylvania rejected relator's plea on the ground that he had effectively waived his right to file post-trial motions. We have thoroughly reviewed the entire state record.
Now, having exhausted his remedies in the state courts, Boyd petitions this court to grant the writ of habeas corpus on the ground that the state system unconstitutionally deprived him of his right to appeal.
The Supreme Court has defined the federal standard of waiver to be "* * * an intentional relinquishment or abandonment of a known right or privilege * * *," Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938), or, phrased differently, a "deliberate bypass" which is a "considered choice" of the waiverer, Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). No act which fails to meet this test will be permitted to operate as a waiver of the protection of constitutional guarantees. See, e.g., United States ex rel. Henderson v. Brierley, 300 F. Supp. 638 (E.D.Pa., 1969). In this case, petitioner contends, generally, that he lacked the composure, information and knowledge necessary to allow him to waive effectively his right to appeal under the applicable standard.
Petitioner's first argument is that he was upset and "scared" following the verdict, that he made a rushed decision not to appeal, and thus that his decision was neither intelligent nor intentional. We are of the opinion that the petitioner received a full, fair, and adequate hearing in the state system on this issue, and we are unable to conclude that the common factual determination reached by the Court of Quarter Sessions of Lehigh County, the Superior Court of Pennsylvania, and the Supreme Court of Pennsylvania is not fairly supported by the record. See 28 U.S.C.A. § 2254(d). Accordingly, we decide that petitioner's claim, insofar as it is based on his lack of composure at the time he decided not to appeal, must fail.
Petitioner's next claim of unconstitutional behavior on the part of the state is rested on the Lehigh County rule of court No. 585 and the construction placed upon a similar rule of court in the case of Commonwealth v. Blum, 210 Pa.Super. 529, 233 A.2d 613 (1967). Rule No. 585 allegedly provides that post-trial motions must be filed within five days of the rendering of the jury's verdict and before the imposition of sentence. The Superior Court considered a similar rule of court in the case of Commonwealth v. Blum, 210 Pa.Super. 529, 532, 533, 233 A.2d 613, 615 (1967) where, as here, the defendant was sentenced before the expiration of the five day period.
"The issue before us for determination is whether a person who has been convicted by a jury may be compelled to come to a decision concerning the filing of post-trial motions prior to the expiration of the period allowed by court rule for that purpose. We are of the opinion that the time for filing such motions may not be shortened by the action of the trial judge in sentencing the defendant prior to the period so allowed by the rule. Although the appellant, after consultation with her trial attorney, determined not to file such motions and acquiesced in the demands of the court to appear for sentencing prior to the expiration of the allowed period, this should not preclude her from asserting her right to reconsider after consultation with other counsel, and to file them later but within the allowed period."