Castle, Chief Judge, and Hastings and Kerner, Circuit Judges.
Petitioner Rini appeals from the denial of his motion under 28 U.S.C. § 2255, after a hearing was held on remand in accordance with this court's decision in Rini v. Katzenbach, 374 F.2d 836 (7th Cir. 1967). The purpose of the hearing on remand was to ascertain whether or not Rini was advised of his right to counsel and whether he knowingly waived that right. Id. at 839.
The facts, as developed by the hearing on remand, are more complete than those originally before this court. Rini was suspected by the Federal Bureau of Investigation (FBI) of being a participant in the armed robbery of the First State Savings and Loan Association at Gary, Indiana, on September 4, 1958. Shortly after the robbery, he was imprisoned on unrelated state convictions in the Stateville Penitentiary near Joliet, Illinois. He previously had served three state sentences for armed robbery or burglary. These sentences were the results of approximately nine prior trials at which he had always been represented by counsel.
While in Stateville, Rini was visited on various occasions by FBI Special Agent Shanahan, alone or in the company of other agents. At the hearing on remand, Agent Shanahan testified that on each occasion, prior to commencing conversation with Rini, he warned Rini of his rights saying:
I was introduced to Mr. Rini as a special agent of the FBI, and my name and then told Mr. Rini that I wanted to speak to him. He did not have to say anything to me or make any statements. If he did say anything to me, it could be used against him possibly in court. He could have an attorney or consult with an attorney before he spoke to me. [Emphasis added.]
Shanahan further testified that he explained to Rini the operation of Federal Rule of Criminal Procedure 20 whereby Rini could plead guilty in the Northern District of Illinois and the case would not be transferred to the Northern District of Indiana; but that if he did not plead guilty under Rule 20, it would be transferred.
At no time did Shanahan testify that he warned Rini of the right to counsel in connection with the Rule 20 proceedings nor did he ever advise him that counsel could be appointed for him if he could not afford to employ counsel of his own choice. Without benefit of counsel, Rini signed a plea of guilty under Rule 20 while in Stateville. Shanahan was the only witness who testified for the government at the hearing on remand.
On July 26, 1960, Rini was brought from Stateville to the district court on a writ of habeas corpus ad prosequendum. He appeared before the Honorable J. Sam Perry, without counsel. After the clerk announced the case, the following colloquy took place between the court and Mr. Monaghan, counsel for the government, in Rini's presence (Record on remand 77-78):
The Court: Well, it is down here on a Rule 20?
The Court: And what is the nature of the charge?
Mr. Monaghan: Bank robbery. Savings & Loan Association, down in Indiana.
The Court: Well, when he comes here on Rule 20 disposition, if he wants to do that, I will warn him in open court that I do not require a lawyer to be ...