dissenting.
The question presented here is whether Florida has deprived petitioner of equal protection or due process of law by summarily dismissing his collateral - attack on a state criminal conviction without conducting an evi-dentiary hearing. Because of the increasing tide of habeas corpus petitions brought by prisoners (see Price v. Johnston, 334 U. S. 266, 293)—many of whom find they must turn to federal courts to obtain a hearing — the question is of considerable importance.
I assume that the Federal Constitution does not compel the States to provide any remedy for collateral attack of criminal convictions. Cf. Townsend v. Sain, 372 U. S. 293, 313, n. 9; Griffin v. Illinois, 351 U. S. 12, 18. But when a State makes available a means for review, it is held to a “constitutional requirement of substantial equality and fair process.” Anders v. California, 386 *139U. S. 738, 744. It may not discriminate arbitrarily between persons applying for relief (e. g., Burns v. Ohio, 360 U. S. 252), and it must adhere to the requirements of due process. Swenson v. Bosler, 386 U. S. 258, 260. Though these rules were primarily developed with reference to appellate review, we have held them applicable with equal force to state post-conviction proceedings. Smith v. Bennett, 365 U. S. 708.
By Rule 1 of the Florida Rules of Criminal Procedure, Florida has provided a means of collateral attack.
In his application petitioner alleged that extensive pretrial publicity — including television broadcasts of confessions given by him — prevented selection of a fair and impartial jury. Petitioner further alleged that he asked his trial counsel to request a change of venue, but counsel refused to do so. The Florida District Court of Appeal held that no evidentiary hearing was necessary because venue objections could only be raised at trial and because venue was res judicata under the judgment in a prior collateral attack by petitioner (see Whitney v. Cochran, 152 So. 2d 727, 730 (Fla.)) that representation by trial counsel was adequate and not a farce or sham.
But this characterization and disposition of petitioner’s allegations avoid the basic issue presented. Under Entsminger v. Iowa, 386 U. S. 748, a defendant who specifically asked his attorney to take a plenary appeal was denied a constitutional right when the attorney took only a truncated appeal. The allegations of petitioner here clearly constitute a prima facie case of violation of this principle.
My Brother Harlan characterizes this crime as “a particularly brutal murder” — and so it was. But that does not alter the underlying constitutional question whether the atmosphere of the community had been so saturated by adverse publicity as to deprive the state trial of the *140constitutional requirement of due-process. Sheppard v. Maxwell, 384 U. S. 333. My Brother Harlan states that from this record it is “inescapable” that petitioner’s trial counsel “deliberately” chose to try the case before a jury that may have been exposed to petitioner’s televised confessions. But with all respect, that is no answer to the present constitutional claim. Until we know the extent and degree of saturation of the public mind with the TV films, it is impossible to say whether or not counsel’s failure to obtain a change of venue was harmless error under the ruling of Chapman v. California, 386 U. S. 18. Far more than mere trial tactics and strategy is involved. In such a case the denial of the .defendant’s rights is not cured by outstanding representation by counsel during the balance of proceedings. It is no answer for the Florida courts to say counsel never moved at trial for a transfer to a county not saturated with pretrial publicity; for this failure of counsel is the very heart of the wrong allegedly done to petitioner. Nor are res judicata principles applicable, for as I read Whitney v. Cochran the Entsminger right-to-counsel issue was neither raised nor decided.
I would vacate the judgment and remand to the Florida courts so that the State may give petitioner the evi-dentiary hearing to which he is entitled. We needlessly burden the federal regime* when we do not insist that Florida, which has provided a remedy, have the eviden-tiary hearing which will determine the nature and extent of the pretrial publicity and whether it was trivial or potentially damaging.
Habeas corpus petitions and petitions under 28 U. S. C. § 2255 in the federal courts increased from 598 in 1941 to 2,314 in 1961 (Annual Rep. Adm. Off. U. S. Courts 1964, p. 155) and to 9,697 in the 1967 fiscal year. Annual Rep. 1967, p. 11-56. Of these, 5,91(8 were habeas corpus cases brought by state prisoners. Ibid.