Appellant was convicted by jury verdict, returned on May 29, 1947 in the *1308Connecticut Superior Court, on two counts of attempted robbery with violence. He was sentenced to an effective term of not less than seven years nor more than twenty-five years. Now, more than twenty years after his conviction, he seeks relief on the claim that he was entitled to a severance of his trial from that of his codefendants because evidence against them, which was not binding upon appellant and was prejudicial to him, was received at the trial. Because the Court reporter at the 1947 trial is now deceased and the transcript is not now available, appellant argues that he has been deprived of his Constitutional right to an appeal.
Judge T. Emmet Clarie held a hearing on the merits of the claims asserted and, in a well-reasoned opinion, denied relief. Were it not for this Court’s recent decision in United States ex rel. Smith v. McMann, Warden, 417 F.2d 648, decided October 10, 1969, we would affirm on the opinion below. However, we believe that decision requires further discussion of the merits of this appeal.
At trial, appellant, by his own statement, was “represented by two distinguished counsel.” At the hearing below, it was stipulated that these attorneys had no present recollection of the facts applicable to the issues here. However, it is not disputed that appellant was paroled in February, 1953, and returned in July, 1954 as a parole violator. A writ of habeas corpus was filed in the Superior Court in 1954 raising the identical issue of appellant’s right to a separate trial. It does not appear that appellant then sought a trial transcript. The writ was denied.
Appellant was again paroled in 1956 and returned again as a violator in June, 1960. A second writ of habeas corpus was filed in the Superior Court in 1961 raising, again, the issue of appellant’s right to a separate trial and this time a transcript was sought, but denied. This petition was likewise denied and appellant unsuccessfully sought to appeal.
Appellant was paroled once more in March, 1963 and returned to prison in March, 1967 as a parole violator. During the time appellant was free from jail, the District Court found that he held well paying jobs. Yet he did not then seek to procure a trial transcript, nor to attack the 1947 conviction. It was not until December, 1967 that appellant, in connection with a new habeas corpus proceeding raising the identical issue of a trial severance, sought a trial transcript, arguing for the first time that he was entitled to a transcript in order to prosecute an appeal, only to find that it was no longer available due to the death of the court reporter.
Judge Clarie reviewed all the relevant facts and considered appellant’s testimony. He found it to be “inherently improbable,” “unreliable and unpersuasive,” and he wrote that “considering the totality of the evidence, including petitioner’s testimony as a witness, its lack of corroboration by documentary evidence in the state court file, the lapse of time and overall circumstances, the Court finds * * * that petitioner has failed to carry his burden of proof.” With this conclusion, we agree.
Appellant argues that he did not waive his right to appeal from his conviction and that it should have been afforded to him within the ruling of Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). That case held that an indigent defendant was entitled to the assistance of assigned counsel on appeal to the same extent as an affluent defendant, and that the State Court could not deny this assistance by ruling in advance that the appeal lacked merit. Here, however, appellant never sought the assignment of counsel. He was represented at trial by two privately retained attorneys. At the time of sentence, appellant was advised by the trial Judge of his right to appeal. Judge Clarie found as a fact that appellant “took no steps to perfect an appeal from his 1947 conviction for over 20 years,” and that appellant’s “in-*1309digency and desire to appeal were in no way manifest.”
In United States ex rel. Smith v. McMann, Warden, 417 F.2d 648 (decided en banc October 10, 1969), this Court decided that Douglas v. California, supra, required that the State Court warn a convicted person of his “right to appeal and his right to prosecute his appeal without expense to him by counsel appointed by the state, if he is indigent.” Judge Clarie found that, not only was appellant advised of his right of appeal, but also that appellant “has not alleged that he was ignorant of these rights.”
The proceedings brought by appellant in the years subsequent to his conviction show a complete awareness of his rights. The death of the Court reporter after a lapse of 20 years from his trial should not be used as a fortuitous event to eradicate this conviction under circumstances in which it is clear that a re-trial will be impossible. Having discounted appellant’s testimony for unreliability, the District Court found no proof to upset the logical conclusion, which the State was entitled to rely on, that a defendant with privately retained, able counsel, who was advised of his right to appeal and continued to have the assistance of counsel, did not need the additional rights available to an indigent defendant.
The Supreme Court in Douglas merely ruled that a poor man was entitled to equal protection by counsel on appeal as a rich man. Neither the rich man nor the poor man can obtain a trial transcript 20 years after conviction when the Court reporter is dead. Neither is denied equal protection of the law in these circumstances. The finding below that the right to appeal was waived by appellant is supported by the record. Since there was no denial of the right to appeal his 1947 conviction at the time, the lack of a transcript 20 years later does not become a denial of any Constitutional right.
Affirmed.