Before SMITH, KAUFMAN and MARSHALL, Circuit Judges.
Petitioner appeals from an order denying his motion in the nature of a writ of error coram nobis. In the District Court, petitioner challenged the constitutional validity of a judgment of conviction rendered in that Court on March 11, 1943. This conviction subsequently served as the basis for a multiple offender sentence in the State of New York which petitioner is presently serving. Since petitioner has completed the full term of service under the federal sentence, the procedure followed in attacking that judgment is correct. United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (1954).
The facts of this case are relatively uncomplicated. At Lavelle's arraignment and plea of guilty to two counts of altering and forging a postal money order on February 23, 1943, and his sentence on March 11, 1943, he was neither represented by counsel nor advised of his right to have counsel, either retained or assigned.*fn1 He made no request for counsel, did not object to proceeding without legal aid, and has neither alleged nor shown his innocence of the offense charged. In fact, he made a full written confession to postal authorities prior to his guilty plea.
Lavelle, twenty years old at the time, had at best an eighth grade education and had served briefly in the armed forces. His father was a policeman. Shortly before his arrest on the federal charges, he had appeared as a defendant in a criminal matter in a New York court. At that time he was advised of his right to counsel in that court, and counsel was assigned at his request.
After two hearings, the District Court denied relief, concluding "that defendant understood the charges made against him and the punishment which might be imposed and that he intelligently and competently waived his right to counsel." In reaching this conclusion, the Court relied on Lavelle's experiences in the state courts, his failure to claim he did not understand the proceedings, and his failure then and now to attack the confession and deny guilt. Under the applicable decision law, however, these factors are legally insufficient to establish a waiver,*fn2 and we must reverse.
The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence." This constitutional guarantee may be waived only if the defendant knows of the right and deliberately and intentionally abandons it. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357 (1938). That as a matter of law there was no such waiver in the present case is conclusively established by our recent decision in United States v. Tribote, 297 F.2d 598 (2 Cir.1961) in which an extensive opinion was written and the relevant authorities collected. In that case, counsel had been assigned to the defendant at the time of his plea but was not present at the sentencing. The defendant, who had had previous experience in New York state criminal cases, was not advised of his right to counsel in the federal courts, either retained or assigned, at the sentencing stage. We held that when a defendant is not so advised, a failure to ask for counsel, to object to further proceedings, or to inquire as to the right to counsel is insufficient to show a knowing waiver.*fn3 We further held that Tribote's experience in state courts and the assignment of counsel for his plea in the very same case did not justify an inference that he knew of his rights at the sentencing and deliberately abandoned them. A fortiori, we believe, the evidence in the present case, being only a failure to object and a previous experience in a state court,*fn4 is insufficient to justify a finding that Lavelle knowingly waived his rights under the Sixth Amendment.
Nor does the failure to show a lack of understanding of the proceedings or to allege and show innocence justify denial of the relief sought when the evidence shows a defendant in a federal court was denied his right to counsel. That he may have understood the nature of the proceedings against him is relevant only to the question of whether he was prejudiced by the lack of counsel. But the Supreme Court has said, "The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." Glasser v. United States, 315 U.S. 60, 76, 62 S. Ct. 457, 86 L. Ed. 680 (1942). And see Johnson v. Zerbst, supra at 468 of 304 U.S. at 1024 of 58 S. Ct. ("If the accused * * * is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction. * * *") The question, therefore, is whether there was a denial of the right, not whether the denial resulted in tangible prejudice. It follows a fortiori that allegations of proof of innocence is unnecessary. United States ex rel. Farnsworth v. Murphy, 254 F.2d 438 (2 Cir.1958) reversed per curiam 358 U.S. 48, 79 S. Ct. 76, 3 L. Ed. 2d 46 (1958); United States ex rel. Savini v. Jackson, 250 F.2d 349, 352 (2 Cir.1957) ("* * * although he could not deny that he had committed the offense he did not actually know that he was guilty either.")*fn5 And, indeed, to compel petitioner to assume the burden of proving his innocence in a collateral proceeding would do little to redress the deprivation of his constitutional rights which occurred in the proceeding in which the government had the burden of proving his guilt.