Nunn appeals from the denial of his petition for a writ of habeas corpus. He is in state custody following his conviction in California Superior Court of the crime of burglary (Cal.Pen.Code § 459). He contends that his trial was infected with an incurable constitutional defect in that the trial court refused to appoint counsel for him, although he was unable to employ counsel. He made the same contention on appeal to the California District Court of Appeal. That court rejected it, People v. Nunn, 1963, 223 Cal.App.2d 658 , 35 Cal.Rptr. 884 .

The United States District Court held an evidentiary hearing at which Nunn testified. He was represented by counsel. In addition to Nunn’s testimony, the court received in evidence transcripts of the proceedings in the California court and copies of the brief filed on Nunn’s behalf on his appeal and of his petition for a hearing in the California Supreme Court.

The California records disclose the following :

Preliminary hearing: Nunn was represented by Attorney Shaffer, whom he had retained, but with whom he had not made final arrangements.

August 16, 1962 arraignment: Before Judge Noble of the Superior Court, Nunn was without counsel; public defender appointed to represent him, at his request, and to represent a co-defendant, Field. Nunn’s bail fixed at $2500. On motion of the public defender, case continued for one week for plea.

August 23, 1962: Public defender asked to be relieved as Nunn’s counsel because of a conflict of interest between Nunn and Field. He stated that Nunn had been represented by Shaffer at the preliminary hearing and that Nunn would like a week’s continuance and would be in a position to retain his own counsel. Nunn agreed and said “I just realized— signed a settlement in an insurance case, and the check will be coming in within the next day or two,” and that he expected to receive about $750. Arraignment continued one week for plea. Public defender’s motion to be relieved as counsel for Nunn granted.

August 30, 1962: Nunn appeared with Attorney Shaffer. A motion was made to set aside the information under Cal. Pen.Code § 995, and for severance; both continued to September 6.

September 6, 1962: Nunn appeared with Attorney Shaffer. Motion under section 995 withdrawn, motion for severance denied, Nunn pleaded not guilty. Trial set for October 1.

September 27, 1962: Nunn appeared with Attorney Shaffer before Judge Fox. Shaffer stated that Nunn desired to retain other counsel to represent him at trial and that a continuance of two or three weeks would be adequate time for him to make the arrangements. The District Attorney consented to the continuance and asked Nunn if he was asking that his counsel be relieved. Nunn said that he was, but the judge said “I am not going to relieve him. It is not that simple.” Shaffer stated that if relieved he would be willing to refund any moneys that he had received. The court, however, said “It doesn’t make any difference, sir, you are counsel of record until other counsel comes in here with you and accepts the substitution. The court is not going to relieve you. You are going to be ready for trial on October 15 unless he procures other counsel.” Continued to October 15.

October 15, 1962: Nunn appeared with Attorney Shaffer, before Judge Noble. Shaffer said that Nunn had filed a motion that morning, asking that Shaffer be relieved as counsel and stated that he joined in the motion. The following colloquy then occurred:

November IS, 1962: The following colloquy occurred:

Matter continued to January 7. The court said:

January 7, 1963: NUNN appeared without counsel, and the following colloquy occurred:

Both parties then waived jury trial. In that connection Nunn stated:

The court then re-emphasized the right to trial by jury, but Nunn repeatedly stated that he waived it. The case was tried and Nunn was convicted.

January 31, 1963: Nunn appeared for sentencing, and asserted that he had been deprived of his right to counsel. The court then recited the history of the matter, concluding with the following statement:

Nunn’s testimony before the district judge is wholly consistent with the foregoing recitals, except for a few particulars. He testified that his arrangement with Shaffer was that he was to pay him a retainer of $750, and $250 a day for trial, but that he had not paid Shaffer anything. He said that he didn’t know what money Attorney Shaffer was talking about when he offered to return what he had been paid. He agreed that in October and November of 1962 he was earning $160 to $170 per week, but testified that he could only retain about $100 of that sum as he had expenses to pay. He testified that he had no property from which to raise funds. He said he talked to other attorneys, but they all wanted between $750 and $1,000 in advance, and that he never had that much money. He also testified that the work he was able to obtain slacked off after November, so that he did not have funds when the trial came on in January. It will be noted, however, that between November 13 and January 7 he did not bring this problem to the attention of the trial court, nor did he tell the judge on January 7 that he was not employed. Indeed, when the judge asked him if he was still employed, his answer was “I was going to ask the court to appoint one.” [Attorney] He also testified that he and his wife were estranged, that Attorney Shaffer represented his wife in an endeavor to obtain a settlement of a claim that she had against an insurance company, that this was the money that he expected to have to pay Shaffer and that when the check was received his wife refused to let him have any of it. This too was not brought to the attention of the trial court, a fact emphasized by the District Judge during the course of argument on the present motion.

The District Judge, in his order denying the petition, found that at the time of his trial, i. e., on January 7, 1963, Nunn was without adequate funds to pay for the services of an attorney. He also found that the California District Court of Appeal concluded that Nunn was attempting to delay his trial and obstruct the orderly procedure thereof and that by his deliberate conduct Nunn had waived his right to counsel. In that connection the District Judge said:

Nunn would have us construe the district judge’s finding narrowly, as a mere acceptance of the findings of the California District Court of Appeal, rather than as a finding of his own. We do not so construe it. His statement is that the District Court of Appeal’s finding is fairly supported by the record as a whole, which we think we should construe as meaning the record before the District Court, including Nunn’s testimony.

Nunn points to certain discrepancies between the facts as recited in the opinion of the California District Court of Appeal and the facts shown by the record. He says that that court erroneously accepted Judge Noble’s view that the public defender asked to be relieved because he could not get along with Nunn, when the record shows that it was because of a conflict of interest between Nunn and Field. He says that the appellate court accepted Judge Noble’s view that Shaffer asked to be relieved because he could not get along with Nunn, when the real reason was that he could not pay Shaffer.

Both Judge Noble and the District Judge had a great advantage over us in resolving the question of Nunn’s bona fides in asserting that he could not get counsel and that the real reasons for withdrawals by the public defender and by Attorney Shaffer were what Nunn says they were. Those judges saw and heard Nunn. Moreover, the District Judge could also take into account the fact that neither the deputy public defender nor Attorney Shaffer was called as a witness. Two judges who saw and heard Nunn concluded that he was “playing footsie with the court.” We cannot say, on this record, that they were wrong.

The findings of the District Judge bring into play the principles applied in such cases as Relerford v. United States, 9 Cir., 1962, 309 F.2d 706 ; Michener v. Johnston, 9 Cir., 1944, 141 F.2d 171 ; Leino v. United States, 10 Cir., 1964, 338 F.2d 154 , and Glenn v. United States, 5 Cir., 1962, 303 F.2d 536 .

Nunn also asserts that he did not intelligently waive his right to jury trial. The District Judge found that he did. We agree. Nunn’s last claim is that he was not adequately represented by counsel on appeal. The record is to the contrary. There is no need to decide whether either of these contentions, if the record sustained them, would entitle Nunn to the federal writ of habeas corpus.

Affirmed.