The opinion of the court was delivered by: BECKER
EDWARD R. BECKER, District Judge.
This is a habeas corpus matter. Petitioner, Santos Navarro, is currently serving two sentences totalling three and one-half to ten years imposed by Judge Edmund B. Spaeth, Jr. of the Court of Common Pleas of Philadelphia County following a non-jury trial in which petitioner was found guilty of aggravated assault and battery upon Juan Ocasio and Joseph Pacheco.
Judge Spaeth credited the Commonwealth's evidence that petitioner had attacked his victims with a knife and rejected petitioner's testimony that he had acted in self-defense.
In its current posture the case presents one principal issue on the merits: whether petitioner was deprived of the effective assistance of counsel at his trial. However, we are also confronted with difficult threshold issues of exhaustion of state remedies and deliberate by-pass which we will address after outlining the complex post-trial procedural history.
II. The Post-Trial Procedural History
Petitioner was tried, convicted and sentenced by Judge Spaeth on August 17, 1966. He is a Puerto Rican American who speaks but little English now and who spoke virtually none at the time of the trial. Consequently he testified through an interpreter as did Ocasio and Pacheco, the victims of the crime. Petitioner filed no direct appeal. However, on February 11, 1967, he filed a petition under the Pennsylvania Post Conviction Hearing Act (PCHA), 19 P.S. § 1180-1 et seq., alleging that he had been deprived of the effective assistance of counsel at trial because of the inadequate preparation and trial performance of his counsel, Michael E. Quinlan, Esq., then an attorney with the Philadelphia Defender Association. He further alleged that Mr. Quinlan had not advised him of his right to appeal. P. J. DiQuinzio, Esq. was appointed to represent petitioner in the PCHA proceedings. On April 24, 1967, an evidentiary hearing was held before Judge Stanley M. Greenberg. At the conclusion of the hearing Judge Greenberg made a finding that petitioner received the effective assistance of counsel at his trial, although he did not make that the basis of relief. Because Judge Greenberg found that petitioner had not been advised of his right to appeal, he granted him the right to appeal nunc pro tunc, noting that one of the issues that could be raised by way of post-trial motions before Judge Spaeth was the question of the ineffectiveness of trial counsel.
Pursuant to Judge Greenberg's order, post-trial motions were filed and heard before Judge Spaeth. In those motions petitioner, through his counsel, Mr. DiQuinzio, alleged that Mr. Quinlan had not adequately presented to Judge Spaeth certain alleged conflicts in the testimony of the two prosecution witnesses; that these alleged conflicts were never considered by the judge; that Mr. Quinlan was denied the right of summation; that Mr. Quinlan's cross-examination of Robert Pacheco was unduly restricted; and that Judge Spaeth was aware of petitioner's criminal record prior to determining his guilt. On August 2, 1967, Judge Spaeth filed an opinion and order denying the post-trial motions except as noted above (see note 1).
Petitioner, again assisted by Mr. DiQuinzio, appealed to the Pennsylvania Superior Court, alleging as grounds for relief: (1) that trial counsel was denied the right of summation; (2) that he was denied the effective assistance of counsel since Mr. Quinlan failed to request the right of summation; (3) that his failure to object to the lack of opportunity for summation did not constitute a waiver of that right; (4) that the evidence was insufficient; and (5) that Mr. Quinlan's right of cross-examination of Robert Pacheco was unduly restricted. On May 10, 1968 the Superior Court affirmed the judgment of sentence in a per curiam order. Commonwealth v. Navarro, 212 Pa.Super. 727, 241 A.2d 348 (1968). Mr. DiQuinzio then filed in the Pennsylvania Supreme Court a petition for allowance of appeal from the judgment of the Superior Court, alleging as grounds for relief the first three of the grounds set forth in the Superior Court appeal. On December 26, 1968, the Pennsylvania Supreme Court denied the allocatur petition as of No. 231-A No. 16 Miscellaneous Docket.
Petitioner next filed a petition for writ of habeas corpus in this Court, which was assigned to the docket of Judge C. William Kraft, Jr. (Miscellaneous No. 69-111). The habeas petition relied upon the same grounds for relief as were put forward in the state Supreme Court petition for appeal, i. e., denial of the right of summation, that counsel was ineffective for failing to request the right of summation, and that counsel's failure to object to the lack of opportunity for summation did not constitute a waiver of that right. In addition, petitioner alleged that the trial court lacked jurisdiction to hear the case since petitioner did not recall signing a waiver of jury trial, a ground for relief not previously asserted in his state court appeals. On May 19, 1969, Judge Kraft filed an opinion and order denying the petition for habeas corpus, holding that: (a) trial counsel was not denied the right of summation since no request therefor was made; in addition, because of the brevity of the trial (the transcript totals but 34 pages), there was no need for a summation; (b) petitioner was effectively represented by counsel; and (c) available state remedies had not been exhausted as to the question of waiver of jury trial. On August 13, 1969, the Court of Appeals denied petitioner's application for certificate of probable cause as of C.A.Misc. Record No. 1263.
Petitioner thereupon returned to the state courts, where, on May 27, 1970, he filed a second PCHA petition, alleging that he was denied his Sixth Amendment right of confrontation because two alleged eyewitnesses were not called by the Commonwealth. Petitioner contended that he had not raised those issues previously because he was of Spanish descent and had very little knowledge of the English language, and was ignorant of his legal rights. The Commonwealth filed a timely answer, and on June 26, 1970, Judge Spaeth dismissed the petition without a hearing or appointing counsel.
On August 27, 1970, relator filed a third PCHA petition alleging that Judge Spaeth had improperly dismissed the May 27, 1970, petition without appointing counsel or allowing an amendment. On December 10, 1970, Judge Spaeth dismissed that petition without a hearing or appointing counsel. An Appeal from that order was filed in the Superior Court of Pennsylvania as of No. 314, October Term 1971. On February 5, 1971, Judge Spaeth filed a memorandum in support of his Orders dismissing the second and third PCHA petitions. He noted that he had dismissed the second petition because petitioner had waived his right to assert that error by not raising the error at the first Post-Conviction Hearing or in his subsequent motions for arrest of judgment and for a new trial. Furthermore, petitioner had not alleged "extraordinary circumstances" excusing the failure to raise that issue. Judge Spaeth rejected petitioner's contention that he required the assistance of counsel because of his difficulties with the English language, noting that an interpreter had been available to petitioner and counsel throughout the trial and throughout the hearing on the first petition. The judge rejected petitioner's request to amend the second petition, on the grounds that there was no factual averment explaining failure to raise an issue at the earlier hearing. He also concluded that petitioner's unfamiliarity with English did not preclude waiver.
The Philadelphia Defender Association was appointed to represent petitioner on appeal. In that appeal, petitioner alleged that Judge Spaeth had improperly dismissed the second and third postconviction petitions, and that he had erred in ruling that petitioner waived his right to assert the substantive claim raised for the first time in the second post-conviction petition because of his failure to raise that issue in his first post-conviction petition and in his appeal nunc pro tunc. The Commonwealth argued that the post-conviction petitions had been properly dismissed because the substantive claim raised in the second petition was patently frivolous. On August 12, 1971, the Superior Court affirmed the order of Judge Spaeth, per curiam, and without opinion. Commonwealth v. Navarro, 219 Pa.Super. 731, 280 A.2d 447 (1971). On December 15, 1971, the Supreme Court of Pennsylvania denied a petition for allowance of appeal, as of No. 263 Allocatur Docket.
Petitioner next returned to the federal courts by filing the present habeas corpus petition. In that petition, he alleged that: (1) the state courts improperly dismissed his second and third post-conviction petitions without appointing counsel; (2) the state courts had erred in ruling, without a hearing, that he had waived his right to assert the constitutional issue raised for the first time in the second petition; and (3) he was denied his constitutional right to confront and cross-examine witnesses when the Commonwealth failed to present two alleged eyewitnesses. The Commonwealth answered, conceding that federal waiver standards should apply, but asserting that this Court need not reach the question of whether Judge Spaeth correctly decided the waiver issue because petitioner's substantive claim was patently frivolous.
In accordance with the local rules of this Court, the matter was referred to United States Magistrate Edwin E. Naythons, who, on June 8, 1972, filed a report. Magistrate Naythons concluded that the record before the state courts did not provide sufficient evidence from which a finding could be made as to whether, under federal waiver standards, petitioner's failure to raise the confrontation issue at an earlier stage constituted a waiver of his right to litigate that issue. He recommended that an evidentiary hearing be had with respect to this issue. Magistrate Naythons also raised in his report an issue not raised by the petitioner in the present petition, that of ineffective assistance of counsel. Having reviewed the trial record and the transcript of the PCHA hearing before Judge Greenberg, Magistrate Naythons was disturbed about a number of aspects of Mr. Quinlan's representation, with particular emphasis on his minimal contact with petitioner prior to trial and the inadequacy of his preparation and cross examination. Accordingly, he recommended that the evidentiary hearing address this issue as well.
Upon receipt of Magistrate Naythons' report we made an independent review of the transcript of the trial and of the PCHA hearing. For reasons which will appear, infra, consonant with the findings of Judges Greenberg and Kraft, we did not concur with Magistrate Naythons' view that the record reflected performance by Mr. Quinlan below the "normal competency" standard of Moore v. United States, 432 F.2d 730 (3d Cir. 1970).
However, we felt that the record revealed a potentially serious problem stemming from the fact that petitioner had no means of communicating with his attorney, Mr. Quinlan, when the lone court interpreter present at petitioner's trial translated the testimony of Ocasio and Pacheco from Spanish to English for the benefit of the trial judge. Since the testimony of Ocasio and Pacheco was critical to the Commonwealth's case, and since there was at least a question as to the adequacy of Mr. Quinlan's cross-examination, we felt that an evidentiary hearing was in order to determine whether or not the possible breakdown in communication between petitioner and his counsel at that juncture affected petitioner's constitutional rights to effective counsel, due process and/or confrontation.
Accordingly, although noting that we were not in substantive agreement with the position taken by Magistrate Naythons in his report, we concurred in his recommendation that we hold an evidentiary hearing.
The hearing was held on March 5, 1973 and a Spanish-speaking interpreter was present.
Petitioner was represented by Stanford Shmukler, Esq., one of Philadelphia's ablest criminal defense lawyers. During the course of the hearing, we granted petitioner leave to amend his petition to raise as a ground for relief the claim that he had been denied the effective assistance of counsel because of inadequate preparation and performance by Mr. Quinlan. Our concern prior to the hearing was that while the Spanish-speaking witnesses were testifying, petitioner would have no means of communicating with his English-speaking lawyer, Mr. Quinlan. We wondered whether petitioner could comment to his lawyer about the witnesses' testimony, point out inconsistencies with the facts if they occurred and make suggestions as to questions to be asked. In the present case, petitioner was able to follow the proceedings when the Spanish-speaking witnesses, Ocasio and Pacheco, were testifying. While the English-speaking witnesses were testifying, the interpreter sat with him to explain what they were saying. The evidence adduced at the hearing established that petitioner had no complaint about inability to confer with his lawyer during trial, for when petitioner required it, Judge Spaeth permitted interruption of the proceedings so that petitioner could confer through the interpreter. For the most part, petitioner did not require it. Accordingly, no claim of the type we are discussing was pressed and we deem it abandoned. The testimony at the hearing before this Court, therefore, was devoted exclusively to the general ineffective assistance issue, as well as to the questions of whether petitioner exhausted his state remedies and whether he had deliberately by-passed the ineffective assistance issue in the state courts.
III. Exhaustion of State Remedies
The Commonwealth vigorously asserts that the petition must be dismissed because petitioner has failed to exhaust available state remedies, including nunc pro tunc appeals which are generally allowed by the Pennsylvania state courts. In pressing its exhaustion claim, the Commonwealth has noted: (1) that in the very first post-trial proceeding, the PCHA hearing before Judge Greenberg, the petitioner asserted and developed an extensive record on what we shall refer to as general ineffective assistance of counsel, i. e., lack of preparation and inadequate performance in general; (2) that at post-trial motions before Judge Spaeth, petitioner raised the question of the ineffectiveness of trial counsel for failing to adequately present the evidence to Judge Spaeth and for failing to request a summation; but (3) that on appeal from the denial of post-trial motions, the only ineffective assistance claim raised by petitioner related to counsel's failure to request summation. In the wake of this procedural history, the Commonwealth argues that petitioner's claim of general ineffective assistance of counsel has never been presented to the Pennsylvania appellate courts, and that he has an available state remedy open to him. The ...