Gerald FAUGHT, Petitioner-Appellant, v. Henry E. COWAN, Warden, Kentucky State Penitentiary, Respondent-Appellee, 507 F.2d 273

PHILLIPS, Chief Judge. This is an appeal from a dismissal of a petition for a writ of habeas corpus. We affirm. Petitioner-appellant, Gerald Faught, was tried in the Daviess Circuit Court at Owensboro, Kentucky, in 1968 for the offenses of malicious shooting and wounding with intent to kill (two counts) and malicious shooting without wounding with intent to kill (one count) and found guilty by a jury of aiding and abetting on each count. In view of his prior felony convictions, appellant was sentenced to life imprisonment as a habitual criminal on September 27, 1968. His motion for a new trial was denied.

No appeal was taken from this conviction, although appellant had been represented by counsel at all stages of the proceeding. Subsequently, appellant filed two Kentucky RCr 11.42 motions, both of which were denied and the denials were affirmed by the Court of Appeals of Kentucky. Appellant also filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Kentucky. That petition was dismissed, and application for a certificate of probable cause was denied by the District Court and by this court. Thereafter, appellant filed the petition in the case at bar.

The issue on appeal, as it was in the District Court, concerns appellant’s allegations that he did not know and was not advised of his right to appeal in forma pauperis and to have assistance of counsel. Were such allegations to be true, appellant would be entitled to a new trial or a direct appeal from his conviction. Lovelace v. Haskins, 474 F.2d 1254 (6th Cir. 1973). The District Court held an evidentiary hearing as required by numerous decisions of this court. See Woodall v. Neil, 444 F.2d 92 (6th Cir. 1971); Goodwin v. Cardwell, 432 F.2d 521 (6th Cir. 1970); Henderson v.

Cardwell, 426 F.2d 150 (6th Cir. 1970). At the hearing, it was stipulated that neither the trial judge nor petitioner’s attorney at the trial had any present recollection of the event in question. Petitioner was the only witness at the hearing. He testified that neither his attorney nor the trial judge had ever advised him, nor did he know, of his right to appeal in forma pauperis and to have assistance of counsel. After reviewing petitioner’s testimony, District Judge James F.

Gordon stated: “We observed the petitioner while testifying, and simply stated, we do not believe him and give no credence to his testimony. His testimony was too inconsistent.” Judge Gordon then examined the state court record at sentencing and made a specific finding that appellant had been advised of his right to appeal in forma pauperis and to have assistance of counsel. We are of the view that this finding was not clearly erroneous but, to the contrary, is supported by the record.

Although the state record in this case is not free from ambiguity, it does show that the trial judge specifically cited and referred to Kentucky RCr 11.02. The Rule provides as follows: “11.02 Sentence. “

(1) Sentence shall be imposed without unreasonable delay. Pending sentence the court may commit the defendant or continue or alter the bail. Before imposing sentence the court shall afford the defendant and his counsel an opportunity to make a statement or statements in the defendant’s behalf and, if the sentence is fixed by the court, to present any information in mitigation of punishment. “

(2) After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the cost of an appeal, or unable to employ counsel, to apply for leave to appeal in forma pauperis and to have the continued assistance of counsel to perfect and prosecute the appeal.

If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal in his behalf.” Petitioner and his attorney were present at the sentencing proceedings and were both given an opportunity to make statements. Such a proceeding carries with it a statutory presumption of correctness. 28 U.S.C. § 2254(d).

It cannot be assumed that the trial judge, who specifically referred to Rule 11.02 at the sentencing, and petitioner’s attorney, who was present at the sentencing, were not aware of its requirements and neglected to advise petitioner of his rights, especially in the absence of evidence to the contrary. Williams v. Babineaux, 357 F.2d 481, 482 (5th Cir. 1966). Neither can we assume that a state court proceeding was subject to flagrant irregularities or that petitioner’s attorney failed to render effective assistance. Morales v. Rodriguez, 373 F.2d 15, 16 (10th Cir. 1967).

Petitioner had the burden of establishing by a preponderance of the evidence that he had not been advised of his rights. Williams v. Smith, 434 F.2d 592, 595 (5th Cir. 1970) ; Waddy v. Heer, 383 F.2d 789, 793 (6th Cir. 1967); Bates v. Meadows, 358 F.2d 674, 675 (6th Cir.), cert denied, 385 U.S. 937, 87 S.Ct. 299, 17 L.Ed.2d 217 (1966). His testimony was uncorroborated and the “District Judge, as the fact finder, was not required to believe the uncorroborated testimony of the petitioner, even though no evidence to the contrary had been (or could have been) adduced.” Walker v.

Beto, 387 F.2d 626, 627 (5th Cir. 1967). See also Whitney v. Craven, 460 F.2d 1267 (9th Cir. 1972). Appellant’s testimony was inconsistent on its face, and Judge Gordon, who had an opportunity to observe appellant, expressly discredited and refused to believe his testimony. Under the facts and circumstances of this case, we affirm the judgment of the District Court. EDWARDS, Circuit Judge, joins. .

Rule 11.42 provides in part: "A prisoner in custody under sentence who claims a right to be released on the ground that the sentence is subject to collateral attack may at any time proceed directly by motion in the court -which imposed the sentence to vacate, set aside or correct it.”