UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: December 4, 1970.
UNITED STATES OF AMERICA EX REL. MALACHI BEARD, JR.
ALFRED T. RUNDLE, SUPT., APPELLANT
Ganey, Van Dusen and Aldisert, Circuit Judges.
Opinion OF THE COURT
ALDISERT, Circuit Judge.
Finding that defendant was indigent following conviction, and that he did not know, and was not told by his privately retained attorney, of the right to appointed counsel on appeal, the district court granted a writ of habeas corpus. The Commonwealth has appealed, urging reversal on the basis of our recent decision in United States ex rel. O'Brien v. Maroney, 423 F.2d 865 (3 Cir.1970).
The district court's decision, which antedated our opinion in O'Brien, relied on United States ex rel. Smith v. McMann, 417 F.2d 648, 654 (2 Cir.1969), in which the Second Circuit held that the state is obligated "to warn every person convicted of crime of his right to appeal and his right to prosecute his appeal without expense to him by counsel appointed by the state, if he is indigent". In following the Second Circuit's rule, the district court specifically rejected the contrary position of the Fifth Circuit announced in Pate v. Holman, 341 F.2d 764 (5 Cir.1965).
In O'Brien, however, we reached the opposite conclusion, disapproving the Second Circuit's rule and adopting the reasoning of the Fifth Circuit. We held that "appellant was not denied equal protection where he was represented at trial by private counsel and the state had no information or notice that the services of court-appointed counsel might be required for appeal." 423 F.2d at 872. Thus, the district court's disposition of this issue is at odds with this court's subsequent resolution of the matter.
Recognizing this, defendant urges that O'Brien should apply only to cases which were final prior to Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963), which held that the state must provide indigent defendants with the assistance of counsel on direct appeal. But whether that approach in O'Brien which dealt with indigency is at all apposite here depends on a preliminary determination whether defendant was in fact indigent following his trial and conviction. It is to this question we now turn.
The evidentiary hearing before the district court disclosed that defendant's wife was his only dependent, that he had been earning approximately $7,800 per year, at the rate of $150 per week, in construction work, that he had worked steadily during his enlargement on bail pending sentencing, and that at the time for perfecting an appeal in 1964 he was the owner of a Chevrolet truck, a 1961 Chrysler automobile, and certain real estate. It was also shown that his private trial counsel had charged him the sum of $300 for the defense of the two indictments. This fee reflected two weeks' earnings of the defendant.
Given a full opportunity at hearing to establish the fact of his indigency, defendant failed to make the required showing. The record is utterly barren of any evidence showing the amount of his savings or debts, if any, or the market value of, or the extent of financial encumbrances upon, his Chevrolet truck, his 1961 Chrysler or his real estate.*fn1 We hold that on such a record there was no basis for a finding of indigency, and that the district court's finding that the defendant was an indigent following trial was clearly erroneous. Fed.R.Civ. Pro. 52(a). Thus, that portion of our holding in O'Brien which was based on the assumption that defendant was indigent has no application to our decision in the present case.
Defendant offers a second argument for sustaining the issuance of the writ by the district court. He contends that a post-trial letter*fn2 from his privately retained counsel, discussing the possibility of an appeal to the Superior Court of Pennsylvania, was capable of such a degree of misimpression that counsel's conduct departed from the "range of competence demanded of attorneys in criminal cases," McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970), and amounted to a constitutional deprivation of counsel under the Sixth and Fourteenth Amendments. We have no occasion to decide this question, however, because an examination of the records in both the district court and the Pennsylvania state post-conviction proceedings convinces us that defendant has failed to exhaust his state remedies on this precise issue as required by 28 U.S.C. § 2254(b).
In his first post-conviction application, filed on May 4, 1967, at 447 June Sessions 1964, Delaware County, Pennsylvania, defendant registered a checkmark on a printed form indicating "the denial of my constitutional right to representation by competent counsel." In his own words he explained: "Counsel actually suppressed my right to appeal without my knowledge." This petition was dismissed by the court, without a hearing, in an opinion from which no appeal was taken.*fn3
A second post-conviction petition followed on July 10, 1967, and again a checkmark was made on the printed form. Augmenting the general allegation in this second petition, defendant assigned eleven specific instances of ineffective assistance of counsel during trial. A twelfth allegation made reference to the appeal:
k. Counsel did not advise petitioner had an absolute right to direct appeal whether he had funds or not, and petitioner did not knowingly and intelligently waive his right to an appeal. In fact counsel abandoned petitioner because he had no additional funds. See attached copies of letters A-1*fn4 and A-2.*fn5
This second petition for post-conviction relief was denied without hearing in an opinion from which an appeal was taken to the Superior Court of Pennsylvania.
In Commonwealth v. Beard, 211 Pa. Superior Ct. 756, 237 A.2d 847 (1968), the Superior Court decided:
In accordance with Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963) and Commonwealth ex rel. Cunningham v. Maroney, 421 Pa. 157, 218 A.2d 811 (1966), the record is remanded to the court below with instructions to hold an evidentiary hearing, with counsel, in order to determine whether appellant knowingly and intelligently waived his right to counsel on appeal. If the court finds that the right to counsel on appeal was not waived, appellant shall be permitted to appeal nunc pro tunc and counsel shall be appointed to represent appellant in prosecuting that appeal. (Emphasis supplied.)
On remand, this colloquy opened the evidentiary hearing conducted on April 5, 1968:
Court Appointed Counsel:
The purpose of this hearing, the Superior Court remanded it for an evidentiary hearing to decide whether he had knowingly and intelligently waived his right to counsel on appeal. I believe we are limited to that in the Order, and in your Order also. (Emphasis supplied.)
Yes, that is right. It is a narrow issue framed by the Superior Court.
After testimony was taken, the court dismissed the petition, concluding: "This court finds that defendant was properly advised by counsel of record that he had the right to be represented by counsel upon appeal and that this right was known to the defendant and intelligently waived by him." (Emphasis supplied.)
Defendant again appealed to the Superior Court which affirmed the judgment of the court below, Commonwealth v. Beard, 214 Pa. Superior Ct. 142, 251 A.2d 806 (1969), three judges dissenting. Allocatur to the Pennsylvania Supreme Court was denied June 26, 1969.
We have reviewed the state record in order to decide the correctness of the district court's finding that defendant exhausted his state remedies only on the issue certified to the post-conviction court by the Superior Court: "to determine whether appellant knowingly and intelligently waived his right to counsel on appeal." Commonwealth v. Beard, supra. We agree with the district court's conclusion that there has been no state exhaustion on any other issue.
Accordingly, we do not decide the question whether defendant's private counsel failed properly to inform his client whether an appeal was being processed and, if so, whether this would amount to incompetency of federal constitutional dimensions. See Moore v. United States, 432 F.2d 730 (3 Cir. 1970).
The judgment of the district court granting the petition for writ of habeas corpus will be reversed, without prejudice.