opinion: Joe BOLLING, Appellee, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellant.
  No. 8575.
  United States Court of Appeals Fourth Circuit.
  Argued June 1, 1962.
  Decided June 5, 1962.
  Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellant.
  Montgomery Knight, Jr., Norfolk, Va., (Court-assigned counsel), for appellee.
  Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.
  PER CURIAM.
  A petition for a writ of habeas corpus, filed by this Virginia recidivist, was first denied without a hearing. We remanded the case with instructions to hold a hearing.
  At the hearing subsequently held, testimony was offered upon the basis of which the District Judge found that the petitioner was not represented by counsel when he pleaded guilty in 1938 to an indictment charging housebreaking and theft. He found further that the petitioner was not offered counsel by the presiding judge in 1938, was unaware that he was entitled to counsel, and that the circumstances were such that his conviction, without the assistance of counsel, was a denial of due process. The District Court concluded that, since the first underlying conviction was invalid, the defendant’s recidivist conviction in 1952, as a third offender, was also invalid. Following his conviction as a third offender, the petitioner escaped, committed another crime, of which he was thereafter convicted, and then received an additional sentence as a fourth offender.
  The District Court was also of the opinion that the fourth offender sentence was invalid, since, in fact, there were then only three previous valid convictions.
  The District Court held that the petitioner was entitled to have the writ issued, but he delayed the actual issuance of the writ on the condition that an appeal be promptly taken, or, alternatively, that steps be taken to retry the defendant for the 1938 offense, or to retry him under a recidivist charge as a third offender.
  The respondent has appealed, contending only that the finding that the petitioner was not advised of his right to counsel prior to his 1938 conviction was clearly erroneous. While the prisoner made other patently irresponsible and apparently fabricated claims, he testified that he had no counsel, was not advised of his right to counsel, and mistakenly understood that he was pleading guilty to a misdemeanor when, in fact, the' charge was a felony. The prosecuting officer at the time of the 1938 conviction, now an agent of the Federal Bureau of Investigation, was offered as a witness by the respondent. He remembered the circumstances of the crime and testified that the practice of the judge, who received the guilty plea in 1938, was to accept the plea after inquiring only whether the prisoner wished to plead guilty. His testimony corroborates the prisoner’s claim that he was not offered counsel and was not informed that he had any right to representation by an attorney.
  Under these circumstances, we think the finding of the District Judge is not clearly erroneous and that he correctly concluded that the writ of habeas corpus should be issued, since the prisoner is not now being held under any valid sentence.
  The District Court, in its order, also stipulated that the writ would not issue if, within sixty days of his order, steps were taken by the Commonwealth of Virginia to retry the prisoner as a third offender. That time has now expired. We think it appropriate that the writ issue upon remand, but, of course, issuance of the writ will not prejudice the right, if any, the Commonwealth may have to rearrest the prisoner and now to retry him as a third offender. Whether or not the defendant may have a valid defense to conviction in any such proceeding is a question not properly addressed to us.
  Affirmed and remanded
  . Bolling v. Smyth, 4 Cir., 281 F.2d 192.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama