This is a habeas corpus action which was dismissed by the District Court without an evidentiary hearing.
In the State court of Ohio petitioner was tried before a jury and found guilty of rape. He was sentenced to a term of three to twenty years. He did not perfect an appeal within thirty days, but thereafter exhausted all available post conviction remedies in the State courts, including an application for delayed appeal, which was denied.
Petitioner contends that he was deprived of the effective assistance of counsel as guaranteed by the Sixth Amendment. It is asserted that petitioner was represented in the State court by an attorney employed by his mother and that this attorney never advised him of his right of appeal.
In Henderson v. Cardwell, Warden, 426 F.2d 150 (6th Cir.), the petitioner for a writ of habeas corpus contended that he was deprived of the effective assistance of counsel because his court-appointed attorney failed to advise him that he was entitled to appeal as a matter of right. This Court, speaking through Judge Cecil, remanded the case to the District Court for an evidentiary hearing to determine whether appellant was denied an appeal by reason of his lack of knowledge of his right and the failure of his counsel to advise him of his right to appeal with the aid of counsel, citing with approval the majority opinion in United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir., in banc), cert. denied, 397 U.S. 925, 90 S.Ct. 929, 25 L.Ed.2d 105.
To like effect see Benoit v. Wingo, 423 F.2d 880 (6th Cir.); Yates v. Wingo, 425 F.2d 1167 (6th Cir.); Lewis v. Henderson, 381 F.2d 523 (6th Cir.).
In Smartt v. Bomar, 340 F.2d 593 (6th Cir.), and Horton v. Bomar, 335 F.2d 583 (6th Cir.), this Court held that the failure of the State trial judge to appoint counsel to prosecute an appeal did not deprive the defendant of any constitutional right. We do not read these decisions as authority for the proposition that a defendant who has no knowledge of his right to appeal may not be deprived of the effective assistance of counsel by the failure of his attorney to advise him of this right.
We hold that the petitioner in his application for a writ of habeas corpus in the present ease has alleged facts which, if true, may have constituted a violation of his right to the effective assistance of counsel and that he was entitled to an evidentiary hearing. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473.
The dissenting opinion suggests the drawing of a distinction between court-appointed and privately retained attorneys with respect to the right of a defendant to the effective assistance of counsel in the form of advice as to the right to appeal. We follow the majority opinion in United States ex rel. Smith v. McMann, supra, in holding that a defendant may be deprived of the effective assistance of privately retained counsel. See also Atilus v. United States, 406 F.2d 694 (5th Cir.).
We remand the case to the District Court with instructions to appoint counsel to represent petitioner and to conduct an evidentiary hearing to determine whether petitioner was denied an appeal by reason of his lack of knowl*523edge of his right and the failure of his counsel or the court to advise him of his right to appeal with the aid of counsel.
Vacated and remanded.