Before SCHNACKENBERG, CASTLE and SWYGERT, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Archie A. White, petitioner, has appealed from an order of the district court entered June 15, 1962, which denied his petition for a writ of habeas corpus "for the reason that the petition fails to set forth facts showing that petitioner exhausted the remedies available to him in the courts of the State of Indiana, namely a belated appeal. Burns' Ann.Statutes § 9-3305 (1956 Repl.)."
The district court denied a certificate of probable cause, but this court on November, 23, 1962 granted leave to proceed in forma pauperis on appeal, and appointed counsel to represent petitioner in this court.
The petition for habeas corpus which was denied by the district court avers that he was arrested by the sheriff of Harrison County, Indiana, on a charge of incest, and the Harrison Circuit Court, on January 28, 1957, found him guilty and sentenced him to the Indiana State Prison for not less than two years and not more than twenty-one years; and he is now confined in said prison.
It further appears therefrom that, on January 31, 1958, petitioner filed a petition for a writ of error coram nobis in the Harrison Circuit Court, which denied the petition on December 8, 1958; that he thereupon, on April 8, 1959, filed an appeal to the Indiana Supreme Court, which denied him relief for the reason that he failed to comply with rule 2-2 of said court, 1958 Edition, under which the time within which to perfect an appeal expired on February 2, 1959. (White v. State, 239 Ind. 710, 159 N.E.2d 388; rehearing was denied. White v. State, 240 Ind. 697, 162 N.E.2d 677; and the United States Supreme Court denied certiorari, White v. Indiana, 362 U.S. 981, 80 S. Ct. 1072, 4 L. Ed. 2d 1018 (1960).)
It also appears therefrom that, on or about August 11, 1960, he filed an appeal to the Indiana Supreme Court from an adverse ruling on August 1, 1960 by the Harrison Circuit Court on his petition for appointment of counsel filed July 1, 1960. His appeal was denied on April 10, 1961, and a rehearing thereon was denied. The United States Supreme Court denied certiorari. 368 U.S. 970, 82 S. Ct. 446, 7 L. Ed. 2d 399.
In answer to a letter which petitioner wrote, the chief justice of the Indiana Supreme Court on April 27, 1961, replied, post 3.
His petition for habeas corpus in the district court recited that the circuit court appointed James D. Williams as his counsel, and the public defender of Indiana refused to help petitioner in any manner.
In reference to his trial, petitioner stated that, after the jury brought in its verdict, attorney Williams asked if petitioner wanted him to appeal and that he told Williams, "Yes, because I am not guilty." He avers that Williams said "I will appeal it for you", but that is the last he heard from Williams.
Petitioner averred that, while confined in the state prison, he wrote the public defender of Indiana several letters asking for help in appealing his conviction and the public defender declined to assist him.
He attached to his petition an alleged reply of the public defender, dated July 16, 1957, addressed to petitioner, which we set forth below:
"This is in answer to your letter of June 25, 1957. After reading your transcript of trial, we find the following evidence.
"(1) Tillie White, your wife, testified that she had been informed by her family that you had been having intercourse with your ...