(dissenting):

I respectfully dissent from the opinion of the majority in this case.

Petitioner’s original application for a writ of habeas corpus asserted as ground for release, the introduction against him in his state criminal trial for murder a confession which was alleged to have been obtained by coercion, fraud and threats. The district court ordered the respondent to produce a transcript of petitioner’s trial, but the State Attorney General was unable to do so because the court reporter’s notes were lost. The district judge then deferred action on the petition until petitioner could file in the Arizona state court a motion for a delayed appeal and hearing to create a transcript substitute. Petitioner’s appropriate motion before *341 the Arizona Supreme Court was denied without a hearing. The district court then filed the order the propriety of which is in question in this appeal. That order gave the State four alternatives: (1) hold the necessary hearing to create a substitute transcript; (2) grant petitioner a delayed appeal in the process of which a substitute transcript would be created; (3) release petitioner from custody; or (4) set aside petitioner’s conviction and retry him.

The vice I find in the district court’s order is the alternative which requires the state to release the prisoner if none of the other alternatives is elected. The state has already denied a petition for a delayed appeal. It has indicated by its denial of applications for habeas corpus (three in number) that correctly or incorrectly it has determined that the conviction was in all respects according to law and that it was not in violation of the Constitution and laws of the United States or of the State of Arizona. It has also indicated rather clearly that it intends to take no further action. The remaining alternative is release.

The present petition was one addressed to the District Court of the United States. That court has jurisdiction

However,

The district court’s order states that

The district court cites no relevant authority for its determination, 1 and adduced no evidence at its hearing which supports that finding. Likewise, the majority opinion tells us that “[u]nder the facts of this case, the burden of producing the necessary record to enable the federal court to decide the case is clearly on the state.” Again no citations are made to support this assertion.

Ariz.Sup.Ct. (Crim.) R. 16(a), 17 A.R.S., provides that a defendant in a criminal action who has failed to take an appeal within the statutory sixty-day period may apply to the court for an order permitting him to take a delayed appeal, if the failure to appeal has been without fault on his part. 2 The Arizona Supreme Court denied petitioner’s motion under this Rule.

A writ of habeas corpus may not be granted just because the state court de *342 clines to hold a hearing which would result in the creation of a substitute transcript. That failure is not, per se, a violation of petitioner’s constitutional rights. The judgment of the Arizona Supreme Court carries with it a presumption of regularity, Johnson v. Zerbst, 304 U.S. 458, 468 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938), and mere allegations in the habeas petition are insufficient to justify the grant of the writ, United States ex rel. Williams v. Deegan, 279 F.Supp. 53, 59 (S.D.N.Y.1967). The burden of proof is upon the petitioner to establish his claim. Johnson v. Zerbst, supra; Williams v. Smith, 434 F.2d 592 (5th Cir. 1970); Allen v. Perini, 424 F.2d 134 (6th Cir.), cert. denied, 400 U.S. 906 , 91 S.Ct. 147 , 27 L.Ed.2d 143 (1970). To this end, the district court must “hear and determine the facts, and dispose of the matter as law and justice require.” 28 U.S.C. § 2243 .

The Supreme Court, in Townsend v. Sain, 372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed. 2d 770 (1963), dealt with the right to a plenary hearing in federal habeas corpus, and set down six instances when the district court would be required to hold such hearings:

Stated summarily, “a federal evidentiary hearing is required unless the state-court trier of fact [either at the time of the trial or in a collateral proceeding] has after full hearing reliably found the relevant facts.” Id. at 312-313 , 83 S.Ct. at 757 . This duty of the district court derives from the purpose of federal ha-beas corpus, to remedy “detentions of fundamental illegality” by providing a “trial-type proceeding” by way of an “original civil proceeding.” Id. at 311 , 83 S.Ct. 745 . The Court further stated:

In discussing the “proper application” of the tests it outlined, the Court considered the indispensibility of a complete state record in determining whether a writ of habeas corpus should issue.

Under the rationale and indeed the literal language of Townsend , the district judge in this case had a duty to hold an evidentiary hearing, to make relevant findings of fact on petitioner’s claim that the admission of his confession dur *343 ing his criminal trial violated the Fourteenth Amendment, before ordering the petitioner’s release, conditionally or otherwise. Because the district court was unable to obtain a record, it had to hold a full factual hearing. To release the prisoner without doing so would be in derogation of the principle that state prisoners are entitled to relief only when they have proved their detentions are constitutionally infirm.

The majority attempts to distinguish Townsend as applicable only when the federal district court has the record of the state court proceeding before it and cannot determine from that record whether there has been a full and fair hearing resulting in supported findings of fact. But, as pointed out above, the Court in Townsend explicitly considered the situation where “no record can be obtained,” 372 U.S. at 319 , 83 S.Ct. 745, 760 , as was the case here. “[I]f . . . no record can be obtained[,] the district judge . . . must hold [an evidentiary hearing]. Id. The majority’s reading of Townsend narrows the case’s application to its own facts, while the Court expressly stated its intention to establish an “open-ended” categorization, because “we cannot here anticipate all the situations wherein a hearing is demanded.” Id. at 317 , 83 S.Ct. at 759 .

Under Townsend , then, the duty to create a record sufficient to enable the federal district court to decide whether the writ of habeas corpus should issue devolves not only upon the state courts, as the majority asserts, but upon the federal district court as well. Without holding such an evidentiary hearing, the district judge did not have power to order the release of the petitioner. He has not determined that the prisoner is being held in derogation of his federal constitutional rights.

I find additional support for my reading of Townsend in Allen v. Perini, 424 F.2d 134 (6th Cir.), cert. denied, 400 U.S. 906 , 91 S.Ct. 147 , 27 L.Ed.2d 143 (1970). In, that case, the court discussed the question whether a writ of habeas corpus could issue on a default judgment for respondent’s failure to file a timely return to the district court’s show cause order. The court held that the district court did not have the power to grant the writ in the absence of an evidentiary hearing and unless and until the averments of the petition were proved by competent evidence. This holding was based on the court’s reading of Townsend , and on the language of 28 U.S.C. §§ 2241 (c) (3) and 2243.

The majority attempts to support the order of the district court as a conditional order. Conditional releases are within the power of the district court to fashion an appropriate remedy “as law and justice require.” 28 U.S.C. § 2243 . In Rogers v. Richmond, 365 U.S. 534 , 81 S.Ct. 735 , 5 L.Ed.2d 760 (1961), Justice Frankfurter discussed the rationale behind conditional orders. After determining that the trial judge in petitioner’s trial for murder had not applied the *344 proper constitutional standard in determining that petitioner’s confession was voluntary and admissible, the Court remanded the case to be held to give the state an opportunity to retry the petitioner within a reasonable time; in default thereof, the petitioner was to be discharged.

Justice Frankfurter’s concern in Rogers is that the federal courts respect the constitutional institution of federalism which affords the states the right to fashion appropriate procedures for the vindication of federal rights. Furthermore, the conditional order of release was predicated on a correct initial determination by the district court that the petitioner was in fact being held in derogation of his constitutional rights because the trial judge had not applied the proper constitutional standard to determine the admissibility of his confession. In the case before us, the district judge has made no prior determination that petitioner’s confession was improperly admitted, nor could he have done so without carefully scrutinizing the record of the criminal trial, a substitute record thereof, or holding an evidentiary hearing. Townsend v. Sain, 372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963); United States ex rel. Jennings v. Ragen, 358 U.S. 276 , 79 S.Ct. 321 , 3 L.Ed.2d 296 (1959); Conner v. Wingo, 409 F.2d 21 (6th Cir. 1969); Maes v. Patterson, 401 F.2d 200 (10th Cir. 1968); Thompson v. White, 391 F.2d 724 (5th Cir. 1968); Dentis v. Oklahoma, 376 F.2d 590 (10th Cir. 1967), cert. denied, 393 U.S. 927 , 89 S.Ct. 261 , 21 L.Ed.2d 263 (1968); Elesperman v. Wainwright, 358 F.2d 259 (5th Cir. 1966).

The “conditional order” cases cited by the majority likewise involved preliminary determinations that petitioner was being held in violation of his constitutional rights. Boles v. Stevenson, 379 U.S. 43 , 85 S.Ct. 174 , 13 L.Ed.2d 109 (1964) (state procedures to determine voluntariness of confession not constitutionally adequate); Gladden v. Unsworth, 396 F.2d 373 ( 9th Cir. 1968) (constitutionally required procedure to determine voluntariness of confession not complied with). 3 Since the federal district court below made no independent and preliminary determination that petitioner’s constitutional rights had been violated by the admission of his confession, the cases sanctioning conditional order of release after a federal court hearing are inapposite and do not support the majority’s conclusion that the district court’s order was proper.

Chessman v. Teets, 354 U.S. 156 , 77 S.Ct. 1127 , 1 L.Ed.2d 1253 (1957), attracts the attention of the majority as “the most interesting precedent of all.” From a public and historic standpoint it may be, but the case falls repetitively within the category of “conditional order” cases already discussed. The Supreme Court held that petitioner had been denied procedural due process because neither he nor his attorney was permitted to be present during the pro *345 ceedings to create a substitute transcript. The Court directed the district court to enter a conditional order, allowing the State a reasonable time within which to hold adversary proceedings to determine the accuracy of the transcript, failing which the petitioner was to be discharged. This order was based upon the proper preliminary determination that petitioner was being held in violation of the Constitution. In our case, there has been no such determination. Furthermore, California law provided for an automatic appeal in Chessman’s case, and required that the entire record of the action be prepared. Id. at 158 , 77 S.Ct. 1127 . Given this California rule, procedural due process would of course require that the transcript be accurate and that defendant participate in person or by’ counsel at hearings to reconstruct the record of his trial. There is no Arizona statute by which an appeal is automatically taken, nor did Hart appeal his conviction within sixty days, as required by Ariz.R.Crim.P. 348(A). There is no rule in Arizona which required the state court in Hart’s case to prepare an entire record.

The majority also attempts to support the propriety of the order as a “direct order” under the rationale of Young v. Ragen, 337 U.S. 235 , 69 S.Ct. 1073 , 93 L.Ed. 1333 (1949). In that case, petitioner had filed for a writ of habeas corpus in the state sentencing court raising “substantial questions under the due process clause.” 337 U.S. at 237 , 69 S.Ct. at 1073 . His petition was denied without a hearing. At that time, under Illinois law, habeas corpus was not an appropriate remedy for denials of due process. However, since then the Illinois Supreme Court had handed down decisions indicating that habeas corpus would be appropriate in such cases. Unfortunately, many lower state courts, whose decisions were not subject to review by the Illinois Supreme Court, continued to deny petitions for habeas on the old procedural grounds. On certi-orari, the Supreme Court vacated the order of the state court denying the writ and remanded it for consideration in the light of the recent Illinois Supreme Court decisions. The State Attorney General had argued that the denial of habeas rested on an adequate nonfederal ground, but the Court refused to consider adequate a state procedure which denied consideration of denial of a federal right. The state must provide some procedure whereby a prisoner can raise his claims regarding denials of federal rights.

In the case before us, it is not argued that Arizona does not have any post-conviction procedures to consider claims of denials of federal constitutional rights. Furthermore, the direct order in Young was issued on direct review of the state court proceedings through certiorari, and not pursuant to a petition for ha-beas corpus.

The majority argues that the Arizona courts have not fulfilled the mandate of Young because they could not have considered petitioner’s claims without reconstructing a transcript. What the majority fails to recognize is that Young does not disallow any state procedural ground which results in a refusal to consider constitutional claims, but only whose which systematically and unwar-rantedly exclude such consideration. No such contention is raised with respect to the Arizona courts here.

For these reasons, I would vacate the order of the district court and remand the case for an evidentiary hearing.

. 28 U.S.C. § 2243 sets out the procedures to be followed by the federal court upon receipt of a petition for writ of habeas corpus. It has nothing to do with the constitutionality of the Arizona Supreme Court’s denial of petitioner’s motion for delayed appeal. In fact, by failing to hold a hearing directed to the issue whether petitioner was being held in violation of his constitutional rights by this action of the Arizona Supreme Court, the district court failed to follow the mandate of 28 U.S.C. § 2243 .

. “16(a) Motion to Take Delayed Appeal. A defendant who has, without fault on his part, failed to take an appeal within the sixty day period prescribed by Rule 348 of the Rules of Criminal Procedure may, by written motion supported by affidavit, apply to this court for an order permitting him to take a delayed appeal. The clerk shall forthwith notify the attorney general who shall respond to such motion within five days.”

. Accord, Pate v. Robinson, 383 U.S. 375 , 86 S.Ct. 836 , 15 L.Ed.2d 815 (1966) (failure of state trial court to inquire into competency to stand trial violated right to fair trial); Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964) (state procedure to determine voluntariness of confession unconstitutional); Dowd v. United States ex rel. Cook, 340 U.S. 206 , 71 S.Ct. 262 , 95 L.Ed. 215 (1951) (unconstitutional denial of right to appeal); Bosler v. Swenson, 363 F.2d 154 (8th Cir. 1966), aff’d, 386 U.S. 258 , 87 S.Ct. 996 , 18 L.Ed.2d 33 (1967) (state procedure for provision of counsel for indigent criminal defendants on appeal unconstitutional).