GASCH, District Judge.
This matter came on for consideration on the application of petitioner, through his counsel, Harold J. Rogers, Esq., for relief under the provisions of 28 U.S.C. § 2255. More specifically, counsel alleged that the sentence imposed under the provisions of the Youth Correction Act should be vacated and set aside for the reason that petitioner was not accorded representation by counsel at the time of his waiver by the Juvenile Court. Petitioner relies largely on the decision of the United States Supreme Court in Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). Petitioner also relies on the decision of the Court of Appeals in Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965).
The Court is confronted with the question whether the decision of the Supreme Court in Kent is retroactive. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), the Supreme Court set forth the basis on which retroactivity is determined. Retroactivity, at least in part, depends upon whether the evidence in question is reliable and relevant.
In each instance where the retroactive application was justified, the Court emphasized that the very integrity of the factfinding process was involved.
Thus, in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), where the rule was determined to be retroactive, it is necessary that the Court determine whether confessions or admissions sought to be introduced in evidence by the Government are voluntary or otherwise. The right of representation by counsel at trial was applied retroactively in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
The Court stressed that retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Again, the Court emphasized the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree. Retroactive effect was given to Jackson v. Denno, supra, because confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature. In Griffin v. State of California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), retroactive effect was denied despite the fact that comment on the failure to testify may sometimes mislead the jury concerning the reasons why the defendant has refused to take the witness stand. The Court in Johnson, supra, concluded:
"We are thus concerned with a question of probabilities and must take account, among other factors, of the extent to which other safeguards are available to protect the integrity of the truth-determining process at trial."