KILEY, Circuit Judge.
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,
three counts of larceny from the person,
and four counts of other larceny.
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,
breaking and entering,
kidnapping,
escape,
and a “repeater violation.”
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
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.
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).
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 unneees
sary to decide where the burden of proof lay and relied on Wisconsin law
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.
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.
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KILEY, Circuit Judge.
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,
three counts of larceny from the person,
and four counts of other larceny.
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,
breaking and entering,
kidnapping,
escape,
and a “repeater violation.”
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
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.
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).
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 unneees
sary to decide where the burden of proof lay and relied on Wisconsin law
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.
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 decide whether this irregularity was a serious procedural error requiring a federal hearing. Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
We think the district court ought not have accepted the premise of the referee's decision that the sheriff’s testimony met the Wisconsin clear and convincing rule. Van Voorhis v. State, 26 Wis.2d 217, 223, 131 N.W.2d 833. The hearing before the referee held twenty-two years after petitioner’s 1945 convictions and based on the oral testimony of the sheriff was, in our opinion, an unreliable basis for ascertaining the truth. Petitioner on one hand might be blamed for the delay of the hearing. But on the other hand when he was convicted he was a twenty-two year old grammar school “dropout” from a disrupted family, and had an IQ of 70.
And the lack of an adequate Wisconsin court record necessitated what hearing was had.
We think the testimony of the sheriff was too hazy and general as a basis for reliable findings, Townsend v. Sain,
supra,
at 318, 83 S.Ct. 745, and the district court should have ordered a federal hearing. The “record as a whole” was essentially the inadequate state record, and the testimony of petitioner and sheriff.
Sheriff Becker’s testimony first related to the usual practice in 1945 after an arrest of a suspect. He then turned to the out of court “advice” given petitioner: Before going to court, he testified, two days after arrest he, his Deputy Bluett and the district attorney on several occasions asked petitioner “if he had an attorney or was going to get one * * several different times * *
*
I think he was informed both by myself and * * * Bluett.”
We hold that the district court erred in accepting the testimony of the sheriff before the referee as “clear and convincing” proof, Van Voorhis v. State, that petitioner was sufficiently advised of his right to counsel so as to justify a conclusion of waiver. We hold that a federal hearing should be conducted for development of “clear and
convincing”
testimony which will lead to reliable findings upon which the essential question of waiver can be determined. We realize that it is probable that only the sheriff and petitioner will be available for the hearing — likely without corroboration, McCarthy v. United States,
supra,
394 U.S. at 469, 89 S.Ct. 1166, aside from the record — and that the only benefit to be hoped for may be more particularized testimony of the sheriff adduced in proper sequence, with respondent having the burden of proceeding first to overcome the prima facie case made in petitioner’s favor by the inadequate state record. Spanbauer v. Burke, 374 F.2d 67 (7th Cir. 1966).
Nevertheless, it is our view that respondent must produce clearer and more convincing evidence than was produced before the referee to justify the district court in adopting the referee’s findings of fact with respect to petitioner’s waiver of his Sixth Amendment-right to counsel. If this clearer and more convincing testimony is unavailable it is not the petitioner, but the respondent who must bear the loss in view of the admittedly inadequate record of the state court proceeding.
The court expresses its appreciation to Mr. Thomas T. George, of the Wisconsin Bar, for his services as court-appointed counsel.
Reversed and remanded.