Ganey, Seitz and Aldisert Circuit Judges. Seitz, Circuit Judge (concurring).
We are called upon to determine the consequences of a failure to appeal a state criminal conviction when appellant knew of his right to appeal, questioned his privately retained counsel about seeking appellate review, and realized that his counsel had no intention of filing and perfecting an appeal.
More than sixteen years ago, in September, 1953, appellant was arrested and charged with armed robbery, burglary, and violations of the Pennsylvania Firearms Act. Because he was imprisoned in a neighboring county awaiting trial on an unrelated charge, appellant was not present at the preliminary hearing in Montgomery County. In July, 1955 -- one and one-half years after indictment, but before trial -- appellant moved to quash the indictment on the ground that there was unreasonable delay in bringing him to trial. The county court denied the motion and the Pennsylvania Supreme Court refused a petition for mandamus. Certiorari was denied by the United States Supreme Court.*fn1 In the meantime, appellant's absence at the preliminary hearing became the subject of a motion to quash which was prosecuted by his counsel who had been privately-retained by his parents. Again the county court denied the motion and appeals to both Pennsylvania appellate courts were unsuccessful.*fn2
The case was tried to a jury in 1957. Appellant was convicted on all three charges and received a sentence of eight to twenty years imprisonment which commenced in 1965 at the conclusion of a previous sentence. In 1966 appellant filed a petition under the Pennsylvania Post-Conviction Hearing Act, 19 Purd.Stat.Anno. § 1180-1 alleging trial error in the admission of an involuntary confession, denial of the right to appeal, and foreclosure of appellate review by the commonwealth's failure to provide notes of testimony. The county court dismissed the petition and the state superior court affirmed.*fn3 A petition for allocatur and a subsequent request for reconsideration were both denied by the Pennsylvania Supreme Court.
Finally, on December 31, 1968, appellant filed in the district court a petition for writ of habeas corpus, the denial of which is the basis of this appeal. We come, then, to the critical issue before us: Was appellant denied the right to appeal his criminal conviction?*fn4
At the district court hearing appellant testified that immediately following the verdict in November, 1957, he asked his private counsel "to appeal the verdict right then and there and at that time he told me it would be futile, that he didn't see where it could be reversed on anything." To the question, "did you answer him when he told you to appeal would be futile?" appellant responded: "He [counsel] stood up and moved -- asked the judge for sentencing right then, and then I turned around and called to my family to have them talk to [him]." Following sentencing, appellant "asked him to appeal again" and was again told that an appeal "would be futile".
On cross-examination appellant acknowledged that he was aware of the availability of appellate review, for he stated: "It wasn't a question of money or anything else at that point. The question was, I thought the testimony given at my trial could have been appealed." He further testified that no one prevented him from taking an appeal, that he made no independent effort to perfect an appeal, and that it was not until March, 1962 -- nearly five years after the appeal period had expired -- that he first sought review of his conviction by writing for a trial transcript and subsequently filing a post-conviction petition.
Appellant's trial counsel also testified at the district court hearing, and his recollections of the post-trial conversations were essentially the same as appellant's. Moreover, he explained that appellant's family "either contacted me by phone or by letter and I replied that the appeal will be useless." Appellant's mother stated that after receiving counsel's reply on the question of appeal the family decided to "just let it drop there". To further questioning she responded:
Q. Did you have any further correspondence or conversation with [appellant] about trying to get hold of [counsel]?
A. Yes. We talked about it but nothing really came of it.
Q. Did you ever try to contact any ...