Before KALODNER, STALEY and SMITH, Circuit Judges.
This appeal is from the District Court's denial of the relator's petition for a writ of habeas corpus. It is premised on the contention that the District Court erred when, following its fact-finding that relator had been induced to plead guilty to a murder indictment in a Pennsylvania state court by the duplicitous conduct and fraudulent misrepresentations of his privately-retained attorney, it denied habeas corpus relief on the ground that neither the state court nor the prosecutor had any knowledge, or was put to notice, of the situation and "intervention by this court requires that the denial of relator's rights be the doing of the state." 205 F.Supp. 123, 128 (E.D.Pa.1962).
Relator specifically urges that he was, by his attorney's misconduct, deprived of due process of law under the Fourteenth Amendment, and the "assistance of counsel" under the Sixth Amendment; that an attorney is "an officer of the court which admitted him to practice and a part of the judicial branch of the state and as such an agent of the state," and accordingly his attorney's actions were state actions. With respect to the latter contention we must immediately note that we held in United States ex rel. Darcy v. Handy, 3 Cir., 203 F.2d 407, 426 (1953), cert. den. Maroney v. United States ex rel. Darcy, 346 U.S. 865, 74 S. Ct. 103, 98 L. Ed. 375 (1953) that "When counsel is retained by a defendant to represent him in a criminal case he acts in no sense as an officer of the state."
Relevant to our disposition are these undisputed facts:
On March 2, 1950, the relator entered a plea of guilty generally in Court of Common Pleas No. 5, Philadelphia, Pennsylvania, to a murder indictment, in 1948, charging him with killing Theodore Rice on Christmas Day, 1947; he was found guilty of murder of the first degree and sentenced to life imprisonment; no appeal was ever taken from the Court's finding or sentence; almost 10 years later, on November 18, 1959, relator filed a petition for a writ of habeas corpus in Common Pleas Court No. 5 which alleged that (1) he had been deprived of the due process guaranteed him under the Fourteenth Amendment by reason of the conduct of his privately-retained attorney, Herbert G. Hardin, and (2) the evidence was insufficient to sustain a finding of first degree murder; the petition was denied without hearing; the Pennsylvania Supreme Court affirmed, Commonwealth ex rel. Wilkins v. Banmiller, 401 Pa. 347, 164 A.2d 333 (1960), cert. den. Wilkins v. Banmiller, 364 U.S. 944, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961), on the ground that "the writ [habeas corpus] may not be used as a substitute for an appeal"; on February 27, 1961, relator filed the instant petition for habeas corpus relief in the District Court, alleging, inter alia, that "through deceit and false promise" he had been "tricked and coerced" by Hardin into pleading guilty by the latter's assurances that he had "made an arrangement with the District Attorney's office and the Court that a light sentence would be imposed", and the untrue statement by Hardin that he had interviewed prosecution witnesses and that their stories would send the relator to the electric chair; the petition further averred that a member of the sentencing court had by his questioning "overreached" the relator.
Hearing on the petition was had before the District Court of November 21, 1961. At that time two of the prosecution witnesses, one Louise McCarter and the other Charles J. Hodge, testified that they had not witnessed the shooting and that they had never been interviewed by Hardin; the relator testified that on the evening of December 25, 1947 he and his half-brother, Leroy, and his cousin, Wiley Cotton, were in a taproom when Cotton became involved in an argument with the deceased Rice, because of attentions which Cotton paid to Louise, Rice's girl; that because he was concerned that his brother might be shot by Rice, he took a loaded revolver from his overcoat pocket, and at that juncture, Cotton, running backward", backed into him and the revolver was fired; that he never intended to shoot Rice; that he was induced to plead guilty by Hardin's assurances he had arranged with the Court and the State prosecutor for a "light sentence" and Hardin's statements that he had interviewed the prosecution witnesses and their testimony would send the relator "to the electric chair"; Leroy Wilkins testified as to the argument in the taproom; also, that on the day the relator pleaded guilty, and before he did so, Hardin told him that he had talked with Louise McCarter and Hodge and their statements would give the relator "the chair or life" and that Hardin had asked the relator to plead guilty and accept his assurances that "he would get him a light sentence." Neither Hardin nor Cotton testified.
The District Court "[accepted] relator's version" that he had been induced to plead guilty by "the deliberate misrepresentation by the attorney [Hardin] of the prospective testimony of certain witnesses." It also found that Hardin had misrepresented to the relator that he had "arranged" a light sentence with the Court and prosecutor, but ruled that such misrepresentation was not of "constitutional dimensions". It held, however, as earlier stated, that Hardin's misrepresentation did not warrant granting of habeas corpus relief because state action was not involved. The District Court further held that the relator had "failed to exhaust available state remedies within the meaning of § 2254" with respect to its complaint of "overreaching techniques" on the part of the late Judge Kun, one of the three trial judges, and that consequently the writ would be denied "as to this ground."
The complaint of "overreaching techniques" is based on the following colloquy between Judge Kun and the relator, which followed relator's guilty plea and his testimony that the shooting was accidental:
"Judge Kun: You had the gun and you pulled the trigger.
"The Defendant: I pulled the gun out and he [Cotton] hit my arm.
"Judge Kun: You also pulled the tigger. That is more than having a gun."
The following statement in relator's brief completely disposes of his complaint that he was "overreached" inasmuch as it establishes that Judge Kun's questions did not cause him to change his testimony that the shooting was accidental:
"However, despite Judge Kun's overreaching techniques, the defendant continued to deny that he pulled the trigger * * *"
We do not reach the critical issue presented here for the reason that there is available to the relator a remedy in the Pennsylvania courts - either via the Pennsylvania Act of April 22, 1903, P.L. 245 § 1, 19 P.S. § 861, or the writ of error coram nobis, and it is settled that the federal writ of habeas corpus "shall not be granted", 28 U.S.C.A. § 2254, in cases of presently available state remedies", Fay v. Noia, 372 U.S. 391, 435, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963),*fn1 citing Brown v. Allen, 344 U.S. 443, p. 447, 73 S. Ct. 397, p. 402, 97 L. Ed. 496 (1953), where it was held:
"It is to be noted that an applicant is barred unless he has 'exhausted the remedies available in the courts of the State * * * by any available procedure.'"
The Act of 1903 provides that:
"Whenever by petition, supported by after discovered evidence, it shall be made to appear to the supreme court that there is ground for substantial doubt as to the guilt of any prisoner convicted of murder of the first degree, the said court shall have power to authorize the court of oyer and terminer in which such prisoner has been convicted to grant a rule for new trial, nunc pro tunc, notwithstanding the expiration of term in which such prisoner was convicted and sentenced; and thereupon the said court of oyer and terminer may, in its discretion, grant and proceed to hear such rule, as in other cases."
The remedy of the writ of error coram nobis is available in a proper case in the Pennsylvania trial courts of record and its Supreme and Superior Courts.
In the leading case of Commonwealth v. Harris, 351 Pa. 325, p. 327, 41 A.2d 688, p. 690 (1945) it was said:
"The writ of error coram nobis to nullify or reform a judgment lies only where facts exist extrinsic of the record, unknown and unknowable by the exercise of diligence at the time of its rendition, and which would, if known, have prevented the judgment either in its entirety or in the form in which it was rendered."*fn2
It has been specifically held that it is available "to set aside a conviction obtained by duress or fraud" and "to prevent a miscarriage of justice." Commonwealth v. Valerino, 32 Pa.Dist. & Co. R. 363, 364-365 (1938); ...