Petitioner appeals from an order ■denying his motion in the nature of a writ of error
coram, nobis.
In the District Court, petitioner challenged the con■stitutional validity of a judgment of conviction rendered in that Court on March 11, 1943. This conviction subsequently served as the basis for a multiple offender sentence in the State of New York which petitioner is presently serving. Since petitioner has completed the full term of service under the federal sentence, the procedure followed in attacking that judgment is correct United States v. Morgan ,
The facts of this case are relatively uncomplicated. At Lavelle’s arraignment and plea of guilty to two counts of altering and forging a postal money ■order on February 23, 1943, and his sentence on March-11, 1943, he was neither represented by counsel nor advised of his right to have counsel, either retained or assigned. 1 He made no request for counsel, did not object to proceeding without legal aid, and has neither alleged nor shown his innocence of the offense charged. In fact, he made a full written confession to postal authorities prjor £0 guilty plea,
Lavelle, twenty years old at the time, had at best an ei£hth £rade education and had served briefly in the armed forces- His father was a policeman, Shortly before his arrest on the federal charges, he had appeared as a defendant in a criminal matter in a New York court, At that time he was advised of his right counsel in that court, and counsel was assigned at his request,
After two hearingS) the District Gourt denied relief, concluding “that defendant understood the charges made against him and the punishment which might be imposed and that he intelligently and competently waived his right to counsel.” In reaching this conclusion, the Court relied on Lavelle’s experiences *218 in the state courts, his failure to claim he did not understand the proceedings, and his failure then and now to attack the confession and deny guilt. Under the applicable decision law, however, these factors are legally insufficient to establish a waiver, 2 and we must re-verse_
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” This constitutional guarantee may be waived only if the defendant knows of the right and deliberately and intentionally abandons it. Johnson v. Zerbst,
Nor does the failure to show a lack of understanding of the proceedings or to allege and show innocence justify denial of the relief sought when the evidence shows a defendant in a federal court was denied his right to counsel, That he may have understood the nature of the proceedings against him is relevant only to the question of whether he was prejudiced by the lack of counsel. But the Supreme Court has said, “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States,
Reversed.
Notes
. It is clear the District Judge believed Lavelle’s testimony that he did not have counsel and was not advised of his right to counsel during the pertinent proceedings. During the first hearing, the Judge said: “I am assuming that this Court can take it as a fact that at the time this defendant was arraigned before me for pleading he had no lawyer. *****
want to have it clear that at the time that we took the plea from this defendant, and pleas from others, we did not have the procedure which we subsequently put into effect. Owing to the many, or occasional disturbances of the record subsequently by defendants, Judge Campbell and myself went over a procedure which we put into effect not because of this case or any other that had preceded it, but in order to make the record itself plain, and this procedure was to ask the witness, or advise the witness that, ‘You have the right to have the assistance of counsel for your defense and if you are too poor to employ counsel the Court will assign it, and, second, you have a right to a speedy and public trial by an impartial jury, and, third, you have a
right to have the indictment read, or you have a right to be informed of the nature and cause of each accusation, and, fourth, you have a right to be confronted with witnesses against you, and, fifth, you have a right to have compulsory process for obtaining witnesses in your favor, and sixth, you have a right to have an adjournment to procure counsel, and seventh, you have a right to call witnesses in your behalf, and, eighth, if you plead guilty in this cause you may be sentenced by the Court to imprisonment.’ That was the substance of it. Now, that, in substance, for the past few years, has always been read by the Clerk to the defendants, Prior to that time and at the time of this defendant’s, Lavelle’s sentence, we didn’t have that procedure. What we did do, and my own recollection is confirmed by the witness himself, is, we asked what the plea was — that is, the Clerk did — and if he pleaded guilty, the Court said, ‘You may be sent to jail.’ And that was it. If there is any dispute about that I shall assume that this defendant at that time wasn’t asked if he had a lawyer or if he wanted a lawyer.”
. The sole argument advanced by the government in support of the judgment is that we may not upset factual findings made by a District Court. We hold only that the facts found below are insufficient as a matter of law to show a knowing waiver.
. Under the present rules, trial courts should, as a matter of course, advise defendants in federal criminal proceedings of their right to counsel. Rule 44, F.R. Crim.P., 18 U.S.C.A.
. The notion that the necessary inferences as to Lavelle’s knowledge can be drawn from the fact that his father was a policeman or his short period of military service seems to us far-fetched,
. If such an allegation is unnecessary under the looser standards of the due process clause of the Fourteenth Amendment, it certainly is not required under the Sixth Amendment itself.