Knoch, Senior Circuit Judge, Kerner, Circuit Judge, and Gordon, District Judge.*fn1
Petitioner appeals from the denial, without a hearing, of his Habeas Corpus Petition, brought pursuant to 28 U.S.C. § 2254. On appeal petitioner asserts two independent grounds for relief. First, it is urged that the case be remanded for a hearing to determine whether the petitioner knowingly and intelligently waived his constitutional right to a full direct appeal. Second, it is urged that the Indiana post-conviction procedures contained in Indiana Supreme Court Rules 2-40 and 2-40A*fn2 are violative of the equal protection and due process clauses of the fourteenth amendment, and that petitioner, an indigent, should be provided with a full transcript of all proceedings in his case and an attorney to pursue his rights in an attempt to obtain a belated appeal.
Petitioner was convicted on April 28, 1959, of first degree murder and was sentenced to life imprisonment on May 6, 1959. Under Indiana law, petitioner had ninety days from June 2, 1959, to file an appeal, but on June 9, 1959, the petitioner was transferred from Indiana State Prison, where he had been taken after sentencing, to a State mental institution in Westville, Indiana. No steps were taken to perfect a direct appeal from the petitioner's conviction. The petitioner remained in the institution until March 28, 1963, a period of almost four years, and then returned to Indiana State Prison, where he is presently incarcerated.
Rules 2-40 and 2-40A of the Indiana Supreme Court require the public defender to represent an indigent prisoner in his attempt to secure a belated appeal if he finds any grounds upon which to sustain such proceeding. If the public defender refuses to provide such representation, because an appeal would be without merit, the Indiana Supreme Court may, after submission of a petition by the prisoner and a report by the public defender, order the public defender to provide the requested assistance. In such a proceeding before the Indiana Supreme Court, the petitioner acts pro se and is not entitled to a transcript. An indigent who is successful in such a petition before the Supreme Court, has an attorney appointed to represent him in his attempt to receive a belated appeal, and is then in the same situation as a defendant who is solvent and has retained a private lawyer to represent him, and is able to purchase a transcript.
Consequently, Indiana Post-Conviction Rules 2-40 and 2-40A have been held to "create[s] an additional obstacle for an indigent in the event the public defender refuses to assist him. * * *" Newland v. Lane, 418 F.2d 143 (7th Cir., Nov. 10, 1969), and violative of the equal protection clause of the fourteenth amendment. See Frazier v. Lane, 282 F. Supp. 240 (N.D.Ind.1968):
Any kind of screening procedure by which an indigent defendant such as petitioner herein must first run the gauntlet of a preliminary showing of merit before a person who, at best, stands in the position of amicus curiae, clearly does not come up to the standard demanded by the equal protection clause. The deficiency is not solved by allowing the Indiana Supreme Court to review the response and report of a public defender who has refused representation of an indigent defendant for the reason that there simply has been no representation by one acting as an active advocate. 282 F. Supp. at 245.
Subsequent to petitioner's appeal to this court, however, the Indiana Supreme Court passed new rules to provide for post-conviction relief. The new Indiana post-conviction rules entitled PC-1 and PC-2,*fn3 effective August 1, 1969, provide in pertinent part that, "Upon receiving a copy of the petition including an affidavit of indigency * * * the Public Defender shall serve as counsel for petitioner." PC-1 § 9.
Petitioner asserts, however, that PC-1 and PC-2 do not afford him adequate review and suffer from the same constitutional infirmities as the old post-conviction rules 2-40 and 2-40A. Petitioner contends that PC-1 and PC-2 are unconstitutional because the new rules do not afford him access to a transcript of his trial as a matter of right, and that the only method by which he could receive such transcript would be if the public defender chose to exercise his discretion and requested one. In addition, although the petitioner admits the literal language of PC-1 § 9 requires the public defender to represent all indigents, he questions whether PC-1 § 9 will be interpreted in accordance with its literal language.*fn4
In the absence of any Indiana state court interpretation of PC-1 and PC-2, it would be presumptuous of this court to speculate on what meaning the Indiana Supreme Court intended to give to PC-1 and PC-2. Principles of federalism require that the Indiana Court initially interpret its own post-conviction rules:
No principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them [citations omitted].
Harrison v. N.A.A.C.P., 360 U.S. 167, 176, 79 S. Ct. 1025, 1030, 3 L. Ed. 2d 1152 (1958).
Consequently, pursuant to the new Indiana Post-Conviction Rules, petitioner may be able to secure his desired relief. Because the new rules may provide such relief, we find that petitioner has not exhausted all of his available state remedies as required by 28 U.S.C. § 2254. See Case v. State of Nebraska, 381 U.S. 336, 85 S. Ct. 1486, 14 L. Ed. 2d 422 (1965); Petition of Barry, 388 F.2d 592 (3d Cir.1965); Worley v. Swenson, 386 F.2d 186 (8th Cir.1967).
Petitioner should attempt to obtain relief under PC-1 and PC-2, at which time such rules would be interpreted. If petitioner is denied relief he would have exhausted his remedies and may then file a § 2254 petition and raise, in light of an Indiana court interpretation, ...