WILLIAM H. BECKER, Chief Judge.
Petitioner, a state convict confined in the Missouri State Penitentiary, petitions this Court for a writ of federal habeas corpus adjudicating as invalid his state conviction of "grand stealing." Petitioner also requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis has been previously granted.
Petitioner states that he was convicted by a jury in the Circuit Court of Wright County of the offense of "grand stealing"; that he was sentenced on that conviction on May 20, 1968, to a term of ten years' imprisonment; that he did not appeal from the judgment of conviction or imposition of sentence; that he has filed prior petitions for habeas corpus in this Court, all of which were dismissed without prejudice for failure to exhaust state remedies (see Lansdown v. Swenson (W.D.Mo.) Civil Actions Nos. 1376, 17473-3, 17900-3, and 18326-3); that he filed a motion to vacate his sentence under Rule 27.26 of the Missouri Rules of Criminal Procedure which was denied in June 1969; that he appealed the denial to the Missouri Supreme Court, which affirmed the judgment of the trial court in Lansdown v. State, Mo., 464 S.W.2d 29 (1971); that he has filed a petition for habeas corpus in the Missouri Supreme Court and a petition for mandamus, both of which have been denied; and that he was represented by counsel at his arraignment and plea, at his trial, his sentencing, and on his Rule 27.26, V.A.M.R. motion and the appeal from the denial thereof.
Petitioner states the following as the grounds on which he bases his allegation that he is being held in custody unlawfully:
"(a) Petitioner was denied compulsory process to obtain wittnesses (sic) in his behalf for his defense at his trial.
"(b) Petitioner was denied the right to effective assistance of counsel.
"(c) Petitioner was denied a Mental examination, when substantial evidence existed, showing that petitioner was a former mental patient."
Petitioner states the following as facts supporting the above grounds:
"(a) Petitioner alleged in his amended Rule 27.26 motion that he was denied the right to subpoena witnesses in his behalf, same issue being presented to the Missouri Supreme Court on appeal. At the hearing on that motion, petitioner testified that he desired to call Danny Buchmaster and Gerald McCrutcheon as witnesses.
He said that these witnesses would have supported petitioner's alibi defense by testifying that petitioner was already in jail at the time the car was stolen. Petitioner further testified that he gave his trial counsel and the sheriff the names of the witnesses he wanted to call.
The trial court and the Missouri Supreme Court found that `. . . defendant was not denied the right to subpoena witnesses in his trial, but was afforded an opportunity to subpoena any witnesses he wanted'. This finding is so clearly erroneous and Unconstitutional (sic). There is absolutely no evidence contrary to petitioner's testimony that he was denied the right to compulsory process. Petitioner's trial counsel did not testify at the hearing, and the sheriff had nothing to say on that point. There is simply no evidence, whatever, to support the court's finding.
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"(b) Petitioner alleged that he was improperly denied his right to appeal from his conviction. He further alleged that his trial counsel dealt away his right to appeal in violation of petitioner's right to due process of law, though petitioner had requested an appeal, as evidenced by his counsel's letter of October 22, 1968 (tr 19).
Petitioner had an absolute right to an appeal from his conviction, and is entitled to be represented by counsel on that appeal. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed. 2d 501. No matter what counsel's reason for not taking the appeal may be, if a defendant desires to appeal, the conviction must be appealed. A failure to do so denies the defendant the effective assistance of counsel as a matter of law. For a strikingly similar factual situation, see State v. Frey, 441 S.W. 2d 11 (Mo.1969), in which the court said, l. c. 14: `The state further concedes that Frey was unconstitutionally deprived of his direct appeal and the effective assistance of counsel because of the failure of counsel to file a timely notice of appeal regardless of his motive in so doing. The transcript of the record bears out the propriety of this concession.' The court added the comment, l. c. 15: `The failure of counsel to take the simple steps required to file a notice of appeal when instructed by his client to do so constitutes such extraordinary inattention to client's interests as to amount to ineffective assistance of counsel cognizable on motion to vacate.'
See also Williams v. United States, 402 F.2d 548 (8th Cir. 1968); State v. Jones, 446 S.W.2d 796 (Mo.1969) and Jones v. State, 445 S.W.2d 311 (Mo.1969). The failure to appeal also deprived petitioner of the right to have several trial errors reviewed on appeal. Petitioner alleged that he did not have a fair trial because law enforcement officers wore weapons in the courtroom, which prejudiced the jury. At the Rule 27.26 hearing, petitioner testified that he was frisked in the presence of two jurors, which likewise prejudiced the jury against him.
The cumulative effect of these irregularities might have denied petitioner a fair trial. But in view of the holding in Wilwording v. State, 438 S.W.2d 447 (Mo.1969), petitioner is not allowed to present trial errors in his 27.26 and also could not appeal such errors to the Missouri Supreme Court on the adverse ruling of his 27.26 proceedings. The only place he could have asserted these errors was in a direct appeal, which was denied to him. The failure of counsel to appeal thus denied appellate review of these irregularities to petitioner. Petitioner contends for this reason alone his illegal and unconstitutional sentence should be reversed.
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"(c) The court errored in that this defendant was denied a sanity hearing by the court after filing proper motion for same, after showing the court that the defendant had at one time been a patient in the Colorado Mental Hospital . . .
Not only was the petitioner denied a proper sanity hearing on his competency to stand trial but was also denied the right of insanity as a defense in the case. Petitioner offered to prove by his past Mental records that he was incompetent at the time of the commission of the alleged offense, and further offered to prove that he presently suffers with the mental disease of epilepsy; that he had been denied his medication for a period of two months while awaiting in jail for trial on the present charge.
All of which was more than substantial reasons for the trial court to grant his motion for examination of mental state and to determine if the defendant had the capacity to understand the nature of the charges against him; and to assist his attorney in the preparation of his own defense. The above cases cited by the petitioner are applicable herein, and especially the cited case of Carpenter v. Missouri Mo., 449 S.W.2d 584, where the Supreme Court of Missouri held it was constitutional error to sentence a defendant under such circumstances warranting a full hearing and determination of the defendant's mental capacity to stand trial under such evidence establishing that there was an impairment of his mental health . . ."
Because petitioner may thereby have stated denials of his federal rights and that he had exhausted his state remedies with respect to his contentions, the show cause order of this Court was issued on March 19, 1971, directing respondent to show cause in writing within 20 days why the writ of habeas corpus should not be issued. Respondent's response was filed on April 8, 1971, within the time allowed by the Court. Thereto, respondent attached the transcript on appeal from the denial of the Rule 27.26 motion in the Missouri Supreme Court; petitioner's brief on appeal in that court; petitioner's supplemental brief on appeal in that court; respondent's brief on appeal in that court; and the written report of the decision of the Missouri Supreme Court affirming the judgment of the trial court in denying the Rule 27.26 motion, Lansdown v. State, supra. Respondent further made specific averments tending to show that petitioner's contentions were without factual or legal merit. In his original traverse of the response, petitioner admitted the genuineness and accuracy of all of the exhibits attached to the response except the "copy of the transcript on appeal," with respect to which petitioner stated that "although such record has been previously requested as a poor person he has never been afforded a copy. Therefore, petitioner has no other alternative than to deny that the record is correct."
On April 21, 1971, accordingly, this Court entered its order directing petitioner to state in writing whether he wished to offer additional evidence and, if so, to specify precisely what items of evidence he wished to offer. In that order, the Court stated:
"The brief filed by petitioner in the Missouri Supreme Court on June 29, 1970, by and through his counsel, Lincoln J. Knauer, Jr., Esquire, of Springfield, Missouri, contains repeated references to the transcript of the trial. It therefore appears that petitioner has access to a transcript and that he should attempt to obtain it from his counsel for use in these proceedings.
"Further, petitioner
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