(dissenting):
From the majority’s opinion I distill this bottom-line result: in every state criminal prosecution in the Fifth Circuit in which the defendant is represented by court-appointed counsel, the state must, upon judgment of conviction, cause an appeal to be taken unless the defendant waives his right *1133to an appeal. Today’s decision is retroactive. Thus, the habeas corpus pathway is now open to anyone in state custody (for whom the state provided trial counsel) to seek a permanent release from custody1 on the ground that he has never made an “intelligent, understanding and voluntary” waiver of his right to a direct appeal from his conviction. Moreover, since the majority has ostensibly grounded its holding on the sixth amendment right to the effective assistance of counsel,2 our decision necessarily applies, retroactively, to federal prosecutions where the accused was provided court-appointed counsel.
In my view, the proposition that one cannot be held to have foregone the right to appeal unless he makes an “intelligent, understanding and voluntary” waiver of the right is not one which logically stems from the sixth amendment right to the effective assistance of counsel. Rather, the notion that a convicted defendant cannot be deemed to have relinquished his right to an appeal absent such a waiver seems to be rooted in fifth and fourteenth amendment due process considerations. It is to satisfy due process, for example, that we have ordained the practice of advising the defendant at the time of sentencing of his appeal rights, and we have held that, once advised, the burden of preserving the right to appeal shifts to the defendant.3 This practice of *1134giving the defendant timely notice of his right is designed, I submit, to protect the defendant’s statutory right to appeal and thus satisfies due process. I do not think that fundamental fairness requires that the state accord a defendant the additional procedural safeguard fashioned by the majority, whereby he is permitted to maintain the appeal right indefinitely unless he waives it within the statutory time for commencing an appeal. To me, the idea that a defendant might be able to manipulate his release by withholding his claim to an appeal until an appeal or retrial is no longer possible is repugnant to common sense notions of justice.4
In the case before us, the petitioner was advised at the time he was sentenced of his right to perfect a direct appeal from his conviction. Under our prior decisions, which have heretofore remained undisturbed,5 it was petitioner’s responsibility, having been informed of his right to appeal, to initiate the appellate process by requesting his counsel, the prosecutor, or the court to perfect an appeal. Had petitioner stood mute, he would, in my opinion, have foregone his right to an appeal once the time for commencing it had lapsed. I suggest that the only way he could have avoided the consequences of having failed to request an appeal would have been to demonstrate that his failure was caused by the ineffective assistance of his counsel, i. e., that his counsel was in fact incompetent.
Petitioner did not take steps to initiate an appeal by deferring the decision whether to appeal to his lawyers; it was as if he had stood mute. Consequently, the only way that he could avoid the binding effect of his conviction was to challenge the competency of his counsel’s performance, which is precisely what he did. As the majority acknowledges, the district court found that, under the circumstances and especially with the threat of a death sentence on retrial (the rape for which he was charged was an aggravated one), petitioner’s counsel fully measured up to the performance expected of criminal lawyers of the day.6 I submit *1135that, under the present case law, the petition was properly dismissed as petitioner clearly failed to sustain the burden of establishing ineffective assistance of counsel.
It seems to me that the majority’s conclusion that counsel was “incompetent” is not only a rank display of appellate speculative fact-finding (as, I submit, is self-evident from majority opinion), but also is nothing more than a legal fiction designed to mask a new due process device for the avowed protection of a defendant’s right to appeal.7 The “waiver” device is to ensure that a defendant does not lose his right to an appeal unless he makes an “intelligent, understanding, and voluntary” relinquishment of it. A corollary is that, absent such a waiver, the state must initiate the defendant’s appeal in all cases where the state provides trial counsel. I suggest that an appeal would have to be lodged in every such case,8 since it would be impracticable for the state to know whether the defendant’s counsel had taken a valid waiver without invading counsel’s confidential relationship with the defendant.
While the waiver device might appear to be salutary as a further safeguard to a defendant’s right to appeal, I submit that it is unnecessary. As I have pointed out, the law already requires that a defendant be timely advised of his right to appeal and, if he requests an appeal, that the state afford him competent counsel. In the event he does not receive either of these, he is entitled to relief in the form of a belated appeal or, if a trial transcript is unavailable, a retrial or release. To me, this is all the constitution demands. Because I cannot subscribe to the majority’s expansive construction of the sixth amendment and would affirm the district court’s dismissal of the petition, I respectfully dissent.
. Of course, not every habeas petitioner who cannot be shown to have waived his right to appeal will obtain outright release. In cases where a record of the original trial proceedings is still available, the appropriate relief would be to grant an out-of-time appeal. Where no adequate record for appeal is available, the appropriate relief would be the grant of a new trial. See, e. g., Horsley v. Simpson, 400 F.2d 708 (5th Cir. 1968); Beto v. Martin, 396 F.2d 432 (5th Cir. 1968). But in cases as old as this one, where the prosecution could not mount an effective attack on retrial, the de facto result is the outright release of the petitioner.
. The majority does not expressly allude to any particular constitutional provision as underpinning its rationale. Rather, it centers its analysis on a defendant’s “constitutional right” to counsel in criminal proceedings. Obviously, the underlying federal constitutional provision is the sixth amendment. The sixth amendment provides in pertinent part, “In all criminal prosecutions, the accused shall enjoy the right . to have the Assistance of Counsel for his defense.” U.S.Const. amend. VI. Of course, the right to effective assistance of counsel exists in state proceedings through the application of the fourteenth amendment.
. In state court proceedings it is well settled that the convicted, indigent defendant must initiate the appeal process. That is to say that, as long as appointed counsel or the court advises him of his right to appeal and to do so in forma pauperis, the defendant must direct a responsible state official (such as his appointed counsel) to begin the appellate process. See, e. g. Collier v. Estelle, 488 F.2d 929 (5th Cir. 1974); Worts v. Dutton, 395 F.2d 341 (5th Cir. 1968). Because it is the defendant’s obligation to initiate an appeal, fairness requires that a defendant represented by state-appointed counsel be informed of his right to request an appeal. If an indigent defendant is not so advised, his failure to request an appeal is excused on the theory that the state, through its appointed counsel, constructively denied the defendant his appeal. E. g., Lumpkin v. Smith, 439 F.2d 1084 (5th Cir. 1971); Nelson v. Peyton, 415 F.2d 1154 (4th Cir. 1969), cert. denied, 397 U.S. 1007, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970).
Under Rule 32(a)(2), Fed.R.Crim.P., a federal sentencing judge must advise a defendant of his right to an appeal and, in indigent cases, of his right to do so in forma pauperis. The rule provides as follows:
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 to apply for leave to appeal in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant.
This provision does not even hint at the proposition that the court need do anything more than simply advise the defendant that he has a right to an appeal. Rule 32 cannot possibly be taken to suggest that an appeal cannot be foregone absent the type of waiver the majority advances. Often, the defendant does not have appellate counsel at his sentencing. (In fact, the history of the rule indicates that it was originally promulgated for the benefit of counsel-less defendants only.) Consequently, there are many situations where the defendant cannot adequately be informed of his chances for reversal on appeal and acquittal on retrial. Yet, once a federal defendant is advised that he has a right to appeal and that he has ten days to do so, his failure to appeal is fatal. As long as a defendant bears the duty of requesting an *1134appeal, I feel his right to an appeal is adequately safeguarded by the requirement that he be made aware of this right.
. The possibility that such a strategem may be entertained is not remote. At the habeas hearing below, the state introduced as an exhibit a letter from petitioner to his trial counsel apparently written some twenty years after his conviction. In that letter, he advised counsel that he had successfully overturned a subsequent sentence imposed on him following an escape conviction. He added in that letter that in prison he learned that
inmates here who were convicted in Dade Co. in the 50’s and discovered that in almost every case that has “lately” been contested there were no “minutes” of the court proceedings available. They all seem to have disappeared or gotten lost during the transfer from the old courthouse to the new.
The clear import of this letter to counsel is that the petitioner, having already served the greater part of his sentence and having lost parole options due to further misconduct, was looking for an easy way out. There is no criticism in the letter of counsel’s decision not to appeal the original conviction. I refer to this letter only for the thought that it is not inconceivable that a defendant adopt a strategy which subsumes the loss of state records. Such a strategy is rewarded when, as the majority suggests, the state bears the burden of proof in claims such as the instant one.
. The majority, rather than distinguishing apposite cases, e. g., Worts v. Dutton, 395 F.2d 341 (5th Cir. 1968), simply relies on Wainwright v. Simpson, 360 F.2d 307 (5th Cir. 1966); Thomas v. Beto, 423 F.2d 642 (5th Cir. 1970); Lumpkin v. Smith, 439 F.2d 1084 (5th Cir. 1971); and Daniels v. Alabama, 487 F.2d 887 (5th Cir. 1973), and unjustifiably stretches them, I submit, to suggest that counsel must always exact a full waiver from a defendant of his right to appeal as a pre-condition to foregoing an appeal. These cases, however, do not even come close to suggesting such an expansive protection of the right to appeal. They do no more than reiterate the requirement that counsel advise his client of the fact that an appeal may be taken.
. In discussing the practice of counsel in advising a defendant of his appellate rights, the district court found that, at the time of petitioner’s conviction,
[tjhis idea of explaining appellate rights at the time of sentencing has come into the law long after this situation. .
. . . The lawyer was just more or less to decide whether or not he wanted to take an appeal . . , and so courts did not go around seeing if somebody had all his appellate rights. (R. at 54-55.)
Counsel’s testimony at the hearing below demonstrated that their practice, to discuss the *1135appeal decision with their client, exceeded the standards of the day.
That the petitioner was advised that he could have taken an appeal had he wanted one is further evidenced by petitioner’s testimony that his attorneys discussed appellate options in his presence. In sum, the lower court found that petitioner was aware of his right to an appeal and left the decision whether to appeal to his counsel.
. Under the majority’s rationale, the question whether a defendant has waived his right to an appeal does not necessarily depend on the competency of his counsel’s performance. For example, it could well be that reasonably effective assistance of counsel was rendered in a given case, but that the defendant himself did not make a Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), waiver of his appellate rights. An analogy can be drawn to a Miranda situation where the interrogator fully advises the interviewee of his rights and where the interviewee makes a confession without a knowing, intelligent and voluntary waiver of his right to remain silent or to have counsel present. Though the advisement of rights may well be probative that a waiver took place, it is not dispositive since the critical issue turns on the interviewee’s state of mind.
In the case before us there were obvious strategic reasons that could have formed the basis of a competent decision not to appeal. In fact, the district judge found that had petitioner succeeded on appeal in obtaining a new trial, and had he been convicted a second time, he could have been sentenced to death as rape was then a capital offense. The court also noted that the circumstances attending the rape in this case were “harsh indeed.” The court found a “strong suggestion” that the risk of capital punishment entered into the decision to forego an appeal. Thus, it is quite possible that petitioner’s counsel were competent, yet because they allegedly did not obtain a “waiver” from their client, they are now labeled as incompetent. Surely, their competence is of no moment. The competency language used by the majority is, I submit, but a vehicle for the development of a new due process concept.
. In cases where a particular jurisdiction permits an appeal to be taken from a conviction following a plea of guilty or nolo contendere, the holding of the majority would require an independent waiver of appeal in such cases as well. The folly of requiring a separate waiver of appeal in nolo or guilty plea cases should be readily apparent. In any event, the majority’s new waiver standard is not limited to contested convictions.