UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: January 26, 1971.
UNITED STATES OF AMERICA EX REL. EMILE A. TURNER, H-6528, APPELLANT,
ALFRED T. RUNDLE, SUPT.
Freedman, Seitz and Van Dusen, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
This appeal challenges a district court order denying a writ of habeas corpus. Relator and one Leonard Dennis were taken into custody on April 7, 1966, in connection with the assault on a woman on April 3, 1966. Relator was 16 years of age at the time.
At the police station, officers asked the suspects if they wished to make a statement. At first relator refused, saying that his mother would arrive with an attorney for him. Relator was placed in a separate room. His companion then confessed, implicating him. Told of the confession, relator whispered to one of the officers that he wanted to make a statement. Before his confession, relator was advised that he had a right to an attorney and that any statements he made could be used against him. However, he was not advised that he was entitled to free counsel.*fn1
Proceedings against relator commenced in Juvenile Court on April 15, 1966. The court heard testimony from one witness, a police officer, who described the scene following the crime and the subsequent investigation. Then, the Juvenile Court stated that the "serious nature" of the crime justified waiver of juvenile jurisdiction and certification to adult court.*fn2 Relator and Dennis were indicted on June 8, 1966. On June 24, 1966, a pre-trial hearing was held to consider their claim that the confessions were involuntary. Relief was denied on the grounds that they had been adequately advised of their constitutional rights. A jury trial was held in the Court of Quarter Sessions of Delaware County and on July 1, 1966, relator was convicted of assault with intent to kill, assault with intent to ravish, burglary, and conspiracy. After dismissal of a motion for new trial, he was sentenced to 7 1/2 to 15 years imprisonment on February 12, 1967. No appeal was taken. Relator filed his first Post Conviction Hearing Act petition on August 16, 1967. He contended that the introduction into evidence of the confession was improper on the ground that (1) he was not represented by counsel, (2) the confession was coerced, (3) his privilege against self-incrimination was infringed, and (4) the evidence was obtained as a result of an unlawful arrest, in that no warrant was issued. The petition was denied without a hearing. The court stated that the issue with respect to the arrest had been waived and the issues with respect to the voluntariness of the confession had been considered by the court, both at the time of the suppression hearing and at the time of the motion for new trial.*fn3 No appeal was taken from the denial. On February 26, 1968, relator filed a second petition under the Post Conviction Hearing Act, alleging that the waiver to adult court was improper under Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), and that his confession was illegally introduced into evidence because obtained in the absence of counsel. A hearing was held on May 17, 1968. On July 3, 1968, the juvenile judge who had certified the relator filed a memorandum opinion setting forth his reasons for having waived juvenile jurisdiction two years previously.*fn4 On July 24, 1968, the Post Conviction Hearing Act petition was dismissed "sur the Memorandum Opinion of Bloom, J., filed July 2, 1968."*fn5 The denial was affirmed by the Superior Court of Pennsylvania on the ground that relator had waived his rights under Kent, supra, by not raising them at an earlier time.*fn6 Allocatur was denied by the Supreme Court of Pennsylvania on June 11, 1969. Subsequently, relator filed a petition for a writ of habeas corpus in the United States District Court, claiming that his constitutional rights under Kent were violated and that his confession should not have been admitted into evidence in the absence of counsel or a waiver of counsel. The district court did not hold an evidentiary hearing and, by order of November 12, 1969, denied the writ on the grounds that relator had waived his Kent claims and had not exhausted his state remedies with regard to his "contentions concerning his confession."*fn7 Relator then appealed from such denial to this court.
I. THE CERTIFICATION PROCEEDINGS
Relator claims that he was not given due notice of the certification hearing and that he was not granted the right to present evidence, time for an adequate review of his social record, or the right to cross-examine witnesses. Moreover, he claims that certification took place without an adequate statement of reasons therefor. Relator maintains that these procedures violated constitutional guarantees set forth in Kent v. United States.
Opinion is split as to whether Kent's holdings are of constitutional dimension or whether they are limited to cases in the District of Columbia courts.*fn8 The language of that decision is not entirely clear.*fn9 However, it is our view that Kent, particularly in light of the Supreme Court's subsequent opinion in In Re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), sets forth certain principles of constitutional dimension. The Court stated in Kent that the waiver of jurisdiction is a "critically important action" and held that "as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision.*fn10 We believe that this result is required by the statute read in context of constitutional principles relating to due process and the assistance of counsel" (383 U.S. at 556, 557, 86 S. Ct. at 1055). Noting that a certification hearing does not necessarily have to conform with "all of the requirements of a criminal trial or even of the usual administrative hearing," the court declared that it "must measure up to the essentials of due process and fair treatment" (383 U.S. at 562, 86 S. Ct. at 1057). Subsequently, in In re Gault, the Court referring to its opinion in Kent, stated, "Although our decision turned upon the language of the statute, we emphasized the necessity that 'the basic requirements of due process and fairness' be satisfied in such proceedings" (387 U.S. at 12, 87 S. Ct. at 1436). We think, along with the majority of courts which have expressed themselves on this issue, that Kent prescribes constitutional duties.*fn11 At the minimum, a juvenile must be given due notice of the charges against him, access to social records, the right to present evidence and cross-examine witnesses, and an adequate statement of the reasons for the certification. Furthermore, for the reasons stated in Kemplen v. State of Maryland, 428 F.2d 169 (4th Cir. 1970), we believe that the requirements of Kent, recognized as having constitutional dimension in Gault, are applicable to the 1966 certification proceedings of relator conducted after the decision in Kent.
The Commonwealth claims that relator deliberately bypassed state procedures by not questioning the certification hearing until the second Post Conviction Hearing Act petition, and thereby waived his right to raise the issue of deprivation of Kent rights. That position was accepted by the Superior Court, which was aided in its decision by Section 4 of the Post Conviction Hearing Act, providing for a presumption of waiver in the case of a failure to raise a claim in a timely manner.*fn12 The district court "adopted" the Superior Court decision and denied the petition.*fn13
The question of waiver is governed in federal cases by the federal standard enunciated in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). 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."*fn14 It is true that relator was represented by counsel during the proceedings and yet failed to raise his Kent contentions. However, our examination of the state records has convinced us that the record is not conclusive on the reasons for his silence. The fact that Kent was decided less than a month before the certification hearing offers some excuse for counsel's failure to raise the issue. Also, in the days immediately following Kent, and particularly before the opinion in In re Gault was filed on May 15, 1967, it was not clear that Kent was a constitutionally based decision. Moreover, there does not appear to be any strategic or tactical benefit which the relator would derive from a by-pass of the state procedures.*fn15 Relator has never been granted a hearing on this issue of waiver. Under the circumstances presented by this case, an evidentiary hearing in the district court is required so that the facts bearing on the issue of whether the relator "understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims [to be tried as a juvenile] in the state courts"*fn16 may be developed.*fn17
If it is determined that relator has not waived his right to raise the Kent issues and that his rights under that decision have been violated, the problem arises as to how to correct the inadequacies of the original hearing. Since Turner is over 21,*fn18 the Juvenile Court no longer has jurisdiction over him. We shall follow the procedure adopted by the Supreme Court in Kent*fn19 and therefore direct, in the event that the district court finds no waiver and determines that relator's constitutional rights were violated in the course of the certification proceedings, that the writ shall issue unless a hearing de novo on the issue of certification be held in the Delaware County Criminal Court within a reasonable time. If it is found that the certification to adult court was proper under the circumstances, the writ shall issue unless the state courts grant relator within a reasonable time, a new trial consistent with our ruling under II below on the Miranda claim. If it is determined as the result of this new certification proceeding that relator should not have been certified as an adult in April 1966, the writ shall issue unless he is released from custody promptly. See Commonwealth v. Williams, 432 Pa. 44, 56 n. 5, 246 A.2d 356, 363 n. 5 (1968).
II. THE ALLEGED MIRANDA VIOLATION
Relator claims that he is entitled to a new trial because of "the admission in evidence of a statement made by him in the course of juvenile proceedings, in the absence of counsel, without a waiver of counsel joined in by the parents of the appellant."*fn20 This statement makes out a claim of a violation of the privilege against self-incrimination under Miranda v. Arizona,*fn21 but such claim was not considered by the district court because it held that relator had not exhausted his state remedies with regard to his "contentions concerning his confession."*fn22 The failure to take a direct appeal from the February 12, 1967, judgment of conviction and sentence may have amounted to a waiver of relator's right to raise this alleged Miranda violation. However, the Commonwealth neither made this contention in its answer to paragraph 11, subsection D, of the Petition (see note 21 above) nor is there any indication that this matter was argued before or presented in briefs to the district court. The district court will have the opportunity to determine whether relator has waived the right to raise such possible denial of constitutional rights under the federal standards referred to above, at page 9, at the hearing held pursuant to Part I of this opinion, if such issue is presented to it.*fn23 In the event the district court finds there has been such a waiver, relator's Miranda claim will be dismissed. However, if the district court finds there has been no waiver, the Commonwealth's contention that relator did not exhaust his state remedies on this issue must be considered. We find that relator's Miranda claim was raised in the second petition under the Post Conviction Hearing Act when relator checked the box next to the statement indicating that his conviction resulted from "the introduction into evidence of a statement obtained in the absence of counsel at a time when representation is constitutionally required." Also, both counsel covered this point in their briefs submitted to the Pennsylvania Superior Court. Not only did question D of the Statement of Questions Involved raise this issue, but also this sentence was included at page 12 of the relator's brief:
The record is certainly not clear that he was sufficiently informed that he was entitled to counsel and doubly certain that he was never told that such counsel would be furnished without cost if he could not afford it [citing authorities] * * *.*fn24
It is true that the criminal court did not consider this claim.*fn25 Moreover, the Superior Court did not mention this issue in its opinion. Commonwealth v. Turner, 214 Pa.Super. 48, 251 A.2d 684 (1969). Likewise, the Supreme Court of Pennsylvania, which denied allocatur, did not decide the allegation on its merits. However, it is sufficient for exhaustion purposes that the relator has presented the claim to the highest state court.*fn26 It is not necessary that the highest state court decide the claim on its merits.*fn27 Here the phrase next to the checked box delineated the issue in narrow and specific enough terms to alert the courts to the possible violation of Miranda. All of the relevant facts were in the record.*fn28 Since the petition was drafted by relator, this court's statement that pro se petitions "may be inartfully drawn and therefore should be read 'with a measure of tolerance'" is applicable.*fn29 Furthermore, relator's counsel, who represented him for purposes of the remainder of the proceedings in the trial courts, amplified the points in his Superior Court brief as noted above. Finally, the fact that the district court has undertaken to find a waiver of the Kent claims without remitting relator to the state courts on that issue is a factor to be considered in evaluating exhaustion of state remedies. Cf. United States ex rel. Gockley v. Myers, 411 F.2d 216, 219 (3d Cir. 1969).
After considering all of these facts,*fn30 we hold that relator has exhausted his state remedies. We do not find it necessary to remand for a hearing on the issue of whether relator was advised of his rights to free counsel, because we think the record clearly illustrates that he was not given this warning.*fn31 The opinion of the Supreme Court in Miranda clearly holds that a suspect must be informed that an attorney will be provided if he is financially unable to obtain one. Miranda v. Arizona, 384 U.S. 436, 473, 86 S. Ct. 1602, 16 L. Ed. 2d 694; see note 21, supra. United States v. Smith, 418 F.2d 223 (6th Cir. 1969); Green v. United States, 411 F.2d 588 (10th Cir. 1969). While a suspect may waive this right, courts have held that ignorance cannot constitute a knowing and conscious waiver of a constitutionally protected right.*fn32
Therefore, if it is determined that the certification order was proper, the writ must issue unless, within a reasonable time, a new trial is granted relator in the Delaware County Criminal Court, because of the improper admission into evidence of a confession taken from relator when he was without counsel, at a time when he had a constitutional right to appointed counsel and there was no waiver of that right.
The November 12, 1969, order of the district court will be vacated and the case remanded for proceedings consistent with this opinion.
The November 12, 1969, order of the district court will be vacated and the case remanded for proceedings consistent with this opinion.