Ricardo Z. RESENDEZ, Appellant, v. Sam GARRISON, Warden, N. C. Central Prison, Appellee, 528 F.2d 1310

HAYNSWORTH, Chief Judge: The question is whether Resendez deliberately bypassed state appellate remedies thereby foreclosing federal court consideration of his federal claims. The district court found a deliberate bypass and denied the writ of habeas corpus. We reverse and remand to the district court for a hearing on the merits of Resendez’s claims. On November 28, 1969 a jury in Robeson County, North Carolina convicted Resendez of felony murder, kidnapping and escape. He received a life sentence.

After the verdict, Resendez conferred with his attorneys concerning an appeal, and they advised that there were no adequate grounds for an appeal and that if he should be successful on appeal, a new jury upon retrial might sentence him to death. At that time in North Carolina, a jury in a capital case, such as felony murder, possessed absolute discretion to decide whether a defendant received a life sen-fence or the death penalty upon conviction. N.C.Gen.Stat. §§ 14-17 (1969).

Resendez’s attorneys reckoned that an appeal, a reversal, and a subsequent retrial might lead to the imposition of the death penalty and so informed Resendez. Confronted with this dilemma, Resendez chose not to appeal. Such a rational decision, while it may foreclose state post-conviction remedies, is not that kind of deliberate bypass of the state court system that precludes legitimate constitutional assertions in the federal courts.

The Supreme Court has held that the motivation behind the individual’s decision not to appeal determines whether the person has engaged in a deliberate bypassing of state procedures, foreclosing federal remedies. Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). In that case, Noia was confronted with the choice of remaining satisfied with life imprisonment or appealing, which if successful, might lead to retrial and the imposition of the death sentence. Noia, like Resendez, opted not to appeal, and the court refused to interpret his actions as a strategic circumvention of state procedures.

In a similar case in this court, Wilson v. Bailey, 375 F.2d 663 (4th Cir. 1967), we decided that a North Carolina defendant’s failure to appeal his first degree murder conviction, following a recommendation of life imprisonment by the jury, was not a deliberate bypass where his attorneys counselled him that upon a successful appeal and retrial he would face a possible death penalty if found guilty or commitment to the state mental asylum if his insanity defense prevailed. Id. at 669.

Now, as then, we believe that an intelligent, rational choice not to appeal when exercise of the right to appeal is threatened with harsh consequences, is not such a deliberate bypass of the state court system as to constitute a waiver of his right to federal review of federal questions. Accordingly, we reverse and remand for a hearing on the merits of Resendez’s claims. Reversed. . Resendez also claims he was under the impression that, if he appealed, he would be put to trial on a related rape charge which was subsequently dismissed.