UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: December 23, 1970.
UNITED STATES OF AMERICA EX REL. ELMER CARL LINDE, APPELLANT,
JOSEPH R. BRIERLEY, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION, PITTSBURGH, PENNSYLVANIA
Ganey, Van Dusen and Aldisert, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
This appeal is taken from a July 30, 1969, District Court order denying the indigent relator's petition for a writ of habeas corpus alleging a denial of the right to appeal due to lack of counsel.*fn1
Relator was convicted of murder, after trial to a jury in the Court of Oyer and Terminer of Westmoreland County, Pa., and, upon dismissal of his motion for new trial, was sentenced on May 15, 1959, to life imprisonment. No appeal was filed. However, a pro se petition for a writ of habeas corpus was filed in the Court of Common Pleas on December 12, 1963. On appeal from the judgment and order of the dismissal of such petition, the Supreme Court of Pennsylvania (at No. 223, March Term 1964) remanded for a hearing as to the voluntariness of incriminating statements made to police officers.*fn2 On remand, counsel was appointed, the petition amended, and the hearing held. An order dismissing the petition was entered on April 2, 1965, and at No. 183, March Term 1965, the Supreme Court of Pennsylvania affirmed.*fn3 Neither the original nor the amended petition contained an allegation that petitioner had been denied the right to counsel on appeal.
Relator next sought relief under the Pennsylvania Post Conviction Hearing Act,*fn4 claiming that he had been denied his right to counsel on appeal from the May 15, 1959, judgment of sentence and commitment. The petition was dismissed and (at No. 43, March Term 1968) the Supreme Court of Pennsylvania affirmed*fn5 on the ground that he had waived his right to raise the contention. Under the Post Conviction Hearing Act, a knowing and understanding failure to raise an issue at a prior collateral proceeding acts as a waiver of that issue*fn6 in the absence of a showing of extraordinary circumstances.*fn7 Moreover, a failure to raise an issue is rebuttably presumed to be knowing and understanding.*fn8 Since appellant was represented by counsel at the prior collateral proceeding and there was "no indication that appellant's failure to raise his Douglas claim was not knowing and understanding," the Supreme Court of Pennsylvania held that the claim had been waived and could not be raised in the second collateral proceeding in the state court.*fn9
Subsequently, relator filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania, again contending that he was denied the right to counsel on appeal. The District Court stated that "the relevant inquiry is whether the petitioner deliberately bypassed his state remedies by failing to raise the issue in his first collateral proceeding in the State courts." Noting that the Supreme Court of Pennsylvania had found a waiver under the criteria set forth in the Pennsylvania Post Conviction Hearing Act, including the rebuttable presumption of § 1180-4(c), the District Court, stating that it was applying the criteria of the federal standard, also found a waiver.*fn10 A waiver under that standard consists of "an intentional relinquishment or abandonment of a know[n] right or privilege," and every presumption against waiver is to be indulged.*fn11
Our examination of the state records has convinced us that they do not offer enough guidance to permit a determination of a possible knowing waiver by relator in the case of each of these issues:
1. Did relator forfeit the opportunity to litigate his claimed denial of the right to appeal with counsel by failure to raise this issue in his initial collateral attacks on the 1959 judgment of sentence and commitment?*fn12
2. If the answer to issue #1 is "no," was the right to appeal with counsel waived by the relator after his 1959 sentence by failing to assert such right to appeal with counsel at that time?*fn13
While it is true that the relator had the benefit of counsel at the time of the amended petition in the state court, petitioner claims that he was not aware that he had the right to counsel on appeal at the time of the original petition and that he was precluded from raising additional allegations during the course of the proceedings.*fn14 Moreover, the relator did not have the notice of the presumption in the Pennsylvania Post Conviction Hearing Act (see footnote 6 above), since that Act was not passed until after the conclusion of the state habeas proceedings.*fn15 Also, there does not appear to be any strategic or tactical benefit which the relator would derive from a by-pass of the state procedures and in not raising in the state court his desire to appeal with the help of counsel.*fn16 Relator has never been granted a hearing on the above-described waiver. Under the circumstances presented by this case, an evidentiary hearing is required in the District Court, so that the facts bearing on whether the relator "understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts,"*fn17 may be fully developed.*fn18 The absence of conclusive evidence on the record as to waiver of the constitutional right (issue 2 above) necessitates an evidentiary hearing on this issue also if question 1 is answered in the negative. See Townsend v. Sain, 372 U.S. 293, 313, 314, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); United States ex rel. Snyder v. Mazurkiewicz, 413 F.2d 500, 503 (3rd Cir. 1969); United States ex rel. Gockley v. Myers, 378 F.2d 398, 401 (3rd Cir. 1967).
The July 30, 1969, District Court order will be vacated and the case remanded for further proceedings in accordance with this opinion, including the evidentiary hearing mentioned above.
The caption, being in error, is being changed to read as follows on the records of this court and of the District Court:
UNITED STATES OF AMERICA ex rel. ELMER CARL LINDE, Appellant v. JOSEPH R. BRIERLEY, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania.