Castle, Chief Judge, Kiley, Circuit Judge, and Grant, District Judge.*fn*
The district court dismissed petitioner's habeas corpus petition without an evidentiary hearing. Petitioner appeals. We reverse and remand.
On November 5, 1945, petitioner was convicted in a Wisconsin county court on guilty pleas under six charges of operating a motor vehicle without the owner's consent,*fn1 three counts of larceny from the person,*fn2 and four counts of other larceny.*fn3 The sentences were various, concurrent and consecutive, and totaled fifteen years.
In August, 1947, he was convicted again on guilty pleas under four counts of larceny,*fn4 breaking and entering,*fn5 kidnapping,*fn6 escape,*fn7 and a "repeater violation."*fn8 The sentences for these violations were also various, concurrent and consecutive with respect to the 1945 sentences, bringing petitioner's total sentences to sixty-five years.
The question for us is whether the district court should have granted an evidentiary hearing upon petitioner's claim that his Sixth Amendment right to counsel was violated because he did not intelligently waived counsel at the 1945 proceeding*fn9 in Wisconsin court. Respondent concedes counsel was not appointed for petitioner at the 1945 proceeding.
Twenty-two years after his convictions petitioner filed a petition for habeas corpus in the Wisconsin Supreme Court asserting, among other things, ignorance of his right to counsel at public expense. Respondent's answer relied upon the theory of waiver of counsel by petitioner. The court designated a state circuit court as referee to take evidence and make findings with respect to the issue of waiver. The sentencing judge and prosecutor having died in the interim, the referee in May, 1967, heard only the testimony of the former sheriff and petitioner, who was represented at the hearing by court-appointed counsel. The referee decided that petitioner had validly waived counsel in the state sentencing courts and the Wisconsin Supreme Court affirmed the referee's decision.*fn10
The question of an effective waiver of a "federal constitutional right * * * is of course governed by federal standards." Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969).*fn11
The district court set a hearing solely on the issue whether a federal court evidentiary hearing was required. Counsel was appointed for petitioner. The court heard oral argument upon the issue raised by the petition and respondent's response. The court found it unnecessary to decide where the burden of proof lay and relied on Wisconsin law*fn12 placing the burden on respondent. The court decided that respondent had the burden of proving petitioner "affirmatively acquiesced", United States ex rel. Jefferson v. Fay, 364 F.2d 15 (2d Cir. 1966), in proceeding without counsel by showing (1) he had knowledge of his right to counsel at public expense, and (2) he had by "some affirmative word or act" consented to proceed without counsel. If that showing was made, the court held that petitioner had the burden of proving the "affirmative acquiescence" was not competent, understanding or voluntary. It concluded that since the Wisconsin sentencing court record did not show sufficiently that petitioner was "advised, or otherwise understood" his right to counsel there was no showing of record of an "affirmative acquiescence" by him.*fn13
The district court held that nevertheless the sheriff's testimony that petitioner was informed "out of court" of the possible punishments facing him, and of his right to be represented by counsel at public expense if he could not afford one, met the state's burden. This holding was based on the referee's crediting the sheriff's testimony and not crediting that of petitioner to the contrary. The district court found that the record before thereferee supported the finding and that no federal evidentiary hearing was needed. The court denied the writ because, being thus informed of his right, and not alleging his acquiescence was not competent or understanding or voluntary, petitioner had "affirmatively acquiesced."
This is not a case where the court record is silent with respect to whether the court had adequately advised a defendant of his right. Here the respondent concedes the transcript shows the court's perfunctory questioning was inadequate to give the advice the Constitution requires to protect an indigent's right to counsel. The referee effectually decided that the sheriff's memory of events twenty-two years earlier sufficiently satisfied the Constitutional requirement.
"We are considering here the question of denial of by far the most pervasive constitutional right of a defendant in a criminal trial," the Sixth Amendment right to counsel. United States ex rel. Baldridge v. Pate, 371 F.2d 424 (7th Cir. 1966). The challenge of the respondent is directed at the state court record which admittedly is inadequate to show that petitioner waived his right to counsel. There is no question that both in Wisconsin and federal courts where the record is inadequate with respect to the question of waiver, proof may be made to supply the deficiency.
In Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 890, 8 L. Ed. 2d 70 (1962), the Supreme Court, in a right to counsel case, said "The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer." See also Boykin v. Alabama, 395 U.S. p. 242, 89 S. Ct. p. 1712. And in Moore v. Michigan, 355 U.S. 155, 161, 78 S. Ct. 191, 2 L. Ed. 2d 167 (1967), the Court, observing that a court cannot force counsel on an accused not wanting one, said, however, a "finding of waiver is not lightly to be made."
We think the district court erred in accepting the referee's finding to be supported by the record as a whole and in deciding that an evidentiary hearing was unnecessary. We think too that the procedure at the hearing was not conducted in accordance with the Wisconsin burden of proof rule. In view of the inadequate 1945 record, the state had the burden of proof. The referee erred in proceeding with petitioner as first witness and subjecting him to testify to his remembrance of events at trial and cross-examination about his juvenile "record" and Wyoming criminal record, all in the presence of the sheriff, the only witness against petitioner. But we need not ...