Adams and Max Rosenn, Circuit Judges and Green, District Judge.
MAX ROSENN, Circuit Judge.
This is an appeal by the Commonwealth from an order granting a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. Appellee, state prisoner Harold Payton, claims that he has not waived his right to assert in a collateral proceeding the failure of the trial court in which he was convicted to inform him of a right to free counsel to prosecute an appeal. The district court held that Payton had not waived his right to assert this claim. Because we find that appellee has no Federal constitutional right to be apprised of a right to free counsel on appeal and that Pennsylvania did not violate due process in ruling that Payton had waived his right to claim such a state-conferred right, we reverse the district court order.
Harold Payton was convicted on May 26, 1960, after a jury trial in the Court of Oyer and Terminer of Dauphin County, Pennsylvania, for the first-degree murder of his wife. On April 25, 1967, he filed a petition under the Pennsylvania Post Conviction Hearing Act (PCHA). In that petition, Payton raised a number of issues, only one of which is relevant to the present appeal.*fn1 He put a check in a box on the printed PCHA petition form, claiming eligibility for relief because of:
The abridgement of a right guaranteed by the constitution or laws of this state or the constitution or laws of the United States, including a right that was not recognized as existing at the time of the trial if the constitution requires retrospective application of that right.
He also checked a box indicating a claim of denial of the constitutional right to competent counsel. In addition, on the PCHA form, Payton alleged the following facts to be true:
Petitioner was without funds or knowledge to perfect an appeal or benefit of counsel to perfect an appeal for him.
Despite making these claims in his PCHA form, neither Payton nor his counsel explicitly raised at the PCHA hearing on July 13, 1967, the issue of a court's duty to apprise him of the right to free counsel on appeal, nor did they offer any proof that Payton was indigent at that time.*fn2 When the denial of post-conviction relief after this hearing was appealed to the Pennsylvania Supreme Court, it found that Payton could not take advantage of Pennsylvania decisions holding that such a right existed,
since he failed to raise any claim of post-trial indigency at the hearing below. . . . A careful scrutiny of the hearing record reveals that it was never even suggested by appellant, his trial counsel, or his collateral counsel that Payton lacked the funds needed to hire a private appellate attorney.
Commonwealth v. Payton, 431 Pa. 105, 107, 244 A.2d 644, 645 (1968).
A petition for writ of habeas corpus was filed with the United States District Court for the Middle District of Pennsylvania. The court denied relief, finding that the issue of an indigent's right to be told of his right to free counsel on appeal had not been clearly before the state court, and, thus, that state remedies had not yet been exhausted.
On April 23, 1969, appellee filed a second PCHA petition, this time explicitly alleging post-trial indigency and that he had not been apprised after his murder conviction of his right to free counsel on appeal. Dismissal of this petition without a hearing was affirmed by the Pennsylvania Supreme Court, Commonwealth v. Payton, 440 Pa. 184, 269 A.2d 667 (1970), on a finding that petitioner had failed to show that he had not intelligently and knowingly waived his right to make such a claim at the first post-conviction hearing.
Following the second denial of relief by the Pennsylvania Supreme Court, Payton once again sought a writ of habeas corpus from the Federal district court. Finding that the record nowhere indicated that Payton was aware at the post-conviction hearing of a right to be told of the availability of free counsel on appeal, the district court held that he could not be found to have waived his claim of such a right. The district court said that Pennsylvania should not have applied the rebuttable presumption of 19 P.S. § 1180-4*fn3 without giving Payton a hearing to rebut the presumption of waiver. It ...