dissenting:

One of my colleagues responded to a proposed opinion in another case as follows: “The burden [of preparing a dissent] overcomes my outrage [at the holding of the opinion]. I concur.”

Although I have let this case simmer for a considerable time, I cannot say I concur.

The dissent is directed to the failure of my colleagues to ask for an en banc but instead merely following Bittaker v. Eno-moto (9 Cir. 1978), 587 F.2d 400 .

The following material is submitted in an attempt to demonstrate that the decisions in Bittaker v. Enomoto, supra, and in this case, which follows Bittaker , are not compelled by precedent; and to show that the panels could have chosen other alternatives for a contrary holding.

The cases held that a state prisoner who had been denied the right to represent himself by a state court before the Supreme Court decided Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 on *735 June 30, 1975, has a constitutional right of self-representation and is entitled to relief by habeas corpus in the federal courts.

Bittaker did not consider the impact of its decision on cases in the state courts when, before Faretta , defendants had been denied the right of self-representation. In footnote 2 the panel states it was improper for the state to call attention to the case of Charles Manson. We discuss this footnote later herein.

The Effect of the Decision

The effect of Bittaker and Walker v. Loggins, the present case, will be most unfortunate. In recent years, in many cases, the trial courts of California have refused to let a defendant represent himself and have appointed counsel for him. The events in the present case began with the shooting of the undercover agent on December 5, 1972. Many of these other cases in the California courts will have arisen even before that date. The rule of Bittaker v. Enomoto, supra, and the present case, will result in either a jail deliverance of defendants in this category or new trials without counsel present for the defendant, a most difficult situation for a trial judge. The absurdity of the whole situation rests on a series of elements:

(1) The Supreme Court of the United States in Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), for the first time determined that defendants in state prosecutions had a constitutional right of self-representation. For 200 years no Supreme Court case had ever so held.

(2) Attorneys had been appointed for those defendants in state eases where the right to proceed without counsel had been denied them. As a practical matter those defendants were far more adequately represented in their trials than they would have been, had the state courts allowed them to proceed without counsel. This is a case where, although a constitutional right was declared in favor of the defendant, the failure to accord him that right as a practical matter, in almost all the cases, had not hurt or injured him in any way.

(3) Before the Faretta case in the U.S. Supreme Court, the California courts had denied that such a right existed for a defendant in their courts. People v. Sharp, 7 Cal.3d 448 , 103 Cal.Rptr. 233 , 499 P.2d 489 (1973), cert. denied, 410 U.S. 944 , 93 S.Ct. 1380 , 35 L.Ed.2d 610 .

(4) After Faretta , the California Supreme Court construed the Faretta rule as one to be applied prospectively only in those cases where the accused had sought to represent himself in trials that commenced on or after June 30, 1975, the date of the U.S. Supreme Court decision in Faretta. People v. McDaniel, 16 Cal.3d 156, 158 , 127 Cal.Rptr. 467 , 545 P.2d 843 (1976).

Faced with the effect that our decision will have on state court cases, there were various ways in which our court could have treated the problem without bringing about the unfortunate results referred to. If we had reversed the grant of habeas corpus below, instead of affirming, our decision could in no way affect cases thereafter arising in the state courts, since Faretta would obviously control. Our decision at best could only affect cases arising and decided in the state courts before Faretta.

Such alternatives were as follows:

1. Yield to and follow state law.

2. Hold that Faretta was based on a different constitutional basis than our Ninth Circuit opinions and that we need not follow our prior cases based on different premises.

3. We could have required a showing of prejudice to a defendant and limited our decision to cases decided in California before Faretta.

4. We could and should have considered the effect of our decision on state law enforcement, a factor ignored in footnote 2 in Bittaker .

5. We could have held, as proposed in my first draft of the present case, that our cases had never upheld the right of self-representation in a state criminal case, and our prior cases did not command we do so.

*736 1. We should yield to the state law.

We apparently only pay lip service to the principle that we should interfere in state criminal matters to as limited a degree as possible through a policy of fostering federal-state comity. Gonzales v. Stone (9 Cir. 1976), 546 F.2d 807, 810 . We could therefore have stated that although our cases prior to Faretta had held that there was a right to self-representation in federal cases, nevertheless we could have acknowledged and yielded to the California rule as stated in People v. Sharp, supra, which denied the right of self-representation to a defendant prior to Faretta , and we could have declined to inflict our decision on the California courts.

This could be a solid ground for a reversal. True, there would be one rule in federal cases and another in state cases. But there would be the clear recognition we were not going to undermine the California position.

2. Faretta in the U.S. Supreme Court was based upon a principle different from our prior decisions in the Ninth Circuit.

The Supreme Court in Faretta had held that the right to self-representation was implied in the structure of the Sixth Amendment. 422 U.S. at 817 , 95 S.Ct. 2525 , et seq. Faretta expressly rejected self-representation as stemming from a correlative right — the right to have an attorney. 422 U.S. at 819-820 , 95 S.Ct. 2525 , and footnote 15. Our cases had expressed it as a counterpart to the right to counsel. Arnold v. United States (9 Cir. 1969), 414 F.2d 1056, 1058 , cert. denied, 396 U.S. 1021 , 90 S.Ct. 593 , 24 L.Ed.2d 514 (1970). We therefore could have stated that in cases arising before Faretta we would not be bound to follow our prior decisions and therefore not required to afford state defendants the benefit of the right to counsel.

3. Showing of prejudice could be required.

The Supreme Court vacated the judgment in Faretta without considering possible prejudice to the defendant. 422 U.S. at 836 , 95 S.Ct. 2525 . Indeed, it noted that in most cases the defendant’s right would suffer if he or she asserted the right to self-representation. 422 U.S. at 834 , 95 S.Ct. 2525 . Very few defendants would be able to satisfactorily show that they suffered prejudice from the assistance of unwanted counsel. In fact, I think we can take judicial notice from records we have seen that defendants exercising their right of self-representation uniformly have less success than those for whom counsel had been appointed. We could also, since we are framing a rule for our circuit, provide that our decision was only applicable to defendants whose cases had originated before Faretta .

Thus, in cases coming after Faretta , there would be no requirement to show prejudice. Such a requirement would probably make it almost impossible in most cases for a defendant to secure his right to counsel guaranteed by Faretta . The majority in Bittaker conclude as to this problem that “The purpose of the right [self-representation] is to protect the defendant’s personal autonomy, not to promote the convenience or efficiency of the trial.” Faretta, 422 U.S. at 834 , 95 S.Ct. at 2540 . This result may be well enough for cases arising after Faretta ; it certainly is not compelled as to the cases arising before Faretta .

4. Footnote 2.

The panel in Bittaker, supra, has inserted footnote 2 as follows:

For the benefit of those people not familiar with the case of People v. Charles Manson, 61 Cal.App.3d 102 , 132 Cal.Rptr. 265 (1976), cert. denied, 430 U.S. 986 , 97 S.Ct. 1686 , 52 L.Ed.2d 382 (1977), let me state *737 briefly the background of the reference to him in the footnote.

Manson was convicted for multiple murders committed on two successive days in August 1969. The case in the trial court required many months of trial, and it was seven years later that the decision on appeal came down affirming his conviction. Manson had claimed the right of self-representation, had been overruled, and counsel had been appointed for him and represented him throughout the trial. Manson, supra, p. 172 .

The footnote may be correct in that we should not tailor any one of our decisions for its possible effect on some particular person in the state or federal court. However, we clearly have the right to consider what the effect of our decision will be on the general administration of justice, both in our court and in the state courts. E. g., in solving the retroactivity problem, the effect of the decision on the administration of justice is a pertinent inquiry. Halliday v. United States, 394 U.S. 831, 832 , 89 S.Ct. 1498 , 23 L.Ed.2d 16 (1969).

A great number of retrials will be required in the state courts because of the effect of Bittaker and this case. This is certainly a factor which we could legitimately consider.

5. Our cases permitted a different result.

Finally, we could have held that there was sufficient lack of uniformity in our prior Ninth Circuit decisions regarding the right to counsel so that we were free to say in a retroactive posture that our prior decisions did not compel the result in Bittaker and this case.

This is what I attempted to do in my proposed opinion in this case.

Unfortunately, the panel in Bittaker would not consider the retroactivity of Far-etta. If Faretta was declared to have only a prospective operation, then the horribles listed above would not occur.

In fact, in the Eighth Circuit, Martin v. Wyrick, 568 F.2d 583 (1978), cites the cases and holds Faretta not retroactive, as does the California Supreme Court in People v. McDaniel, supra.

The panel in Bittaker did not reach the retroactivity question because it is of the view that prior cases in the Ninth Circuit had in substance held that the defendant had a constitutional right to represent himself in state court proceedings before the Supreme Court so held in Faretta .

In our case, the majority quotes from Bittaker :

Despite the apparent breadth of some of the language in our decisions, I think the right to self-representation in this circuit prior to Faretta had not been extended to defendants in state criminal proceedings.

On numerous occasions prior to Faretta this circuit held — with respect to federal criminal trials — that there is a constitutional right to self-representation. See, e. g., Bayless v. United States, 381 F.2d 67, 71 (9 Cir. 1967) (“A defendant has such a right [to represent oneself] and it is not only a statutory right but a constitutional right.”); Arnold v. United States, 414 F.2d 1056, 1058 *738 (9 Cir. 1969), cert. denied, 396 U.S. 1021 , 90 S.Ct. 593 , 24 L.Ed.2d 514 (1970) (“A court has no more right to force an attorney on a defendant than it has to ignore the Sixth Amendment right to counsel.”); Hodge v. United States, 414 F.2d 1040, 1042 (9 Cir. 1969); Haslam v. United States, 431 F.2d 362, 365 (9 Cir. 1970), cert. denied, 402 U.S. 976 , 91 S.Ct. 1680 , 29 L.Ed.2d 142 (1971) (“The constitutional right to assistance of counsel includes the correlative right to dispense with counsel and proceed in propria persona.”); United States v. Pike, 439 F.2d 695 (9 Cir. 1971) (“ ‘The right to act pro se * * * is a right arising out of the Federal Constitution and not the mere product of legislation or judicial decision.’ ”, quoting United States v. Plattner, 330 F.2d 271, 273 (2 Cir. 1964).); United States v. Price, 474 F.2d 1223, 1226 (9 Cir. 1973) (“ . . . it is now clear that the right to proceed pro se is not merely statutory, it is a right of constitutional dimension.”). Notably, none of these holdings affirmatively extended the right to self-representation to state court proceedings.

In Meeks v. Craven, 482 F.2d 465 (9 Cir. 1973), the Ninth Circuit had the opportunity to determine whether the standard previously applied only in federal proceedings was also applicable in state proceedings, but declined. Meeks involved a petitioner in custody of California who filed a 28 U.S.C. § 2254 habeas corpus petition in federal court, alleging a denial of his right to self-representation. The Ninth Circuit noted the challenge to California’s standard, but stated:

Nevertheless, Meeks contained a seed of a restriction of the scope of the language establishing the right to self-representation in this circuit. In a concurring opinion in Meeks , Judge Trask recognized the holdings in this circuit establishing a constitutional right to self-representation, but questioned their breadth. He suggested that the absolute character of the language of prior cases was justified neither by Supreme Court precedent nor by the facts of the cases themselves. Although Judge Trask seemed to feel constrained to recognize some kind of right to waive counsel, he did not feel our circuit’s cases should be construed to extend that right beyond the boundaries established by existing Supreme Court precedent.

This seed of restraint found fertile soil in United States v. Dujanovic, 486 F.2d 182 (9 Cir. 1973), decided less than one year before Walker’s trial. On its facts, Dujanovic involved the contention by a defendant that his waiver of counsel was not competently, intelligently and voluntarily made. However, the court took this occasion to review the nature of the right to self-representation in the Ninth Circuit, making two important points:

—(1) the right to self-representation as developed at that time in the Ninth Circuit flowed from “the two founts” of Adams v. United States ex rel. McCann, 317 U.S. 269, 279 , 63 S.Ct. 236 , 87 L.Ed. 268 (1942) and Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938). The court explained the thesis of these two cases to be “that the constitutional right of counsel may be waived by an accused, through an intelligent relinquishment or abandonment thereof, and only then may the correlative constitutional right of self-representation be asserted and brought into play.” United States v. Dujanovic, 486 F.2d at 185 .

—(2) whatever the nature of the language of prior opinions in this circuit discussing the right, the decisions have progressed from “case to case” to meet “the exigencies of the given case.” The composite rule was restated in open-ended terms to be: “An accused has the limited constitutional right upon demand to competently and intelligently waive his constitutional right to assistance of competent counsel and assume the management and control of his defense or participate therein under controlled circumstances as determined by the trial court.” United States v. Dujanovic, 486 F.2d at 186 .

*739 Dujanovic did not explicitly discuss the applicability of the right to self-representation in state criminal proceedings. But the strong implication from the opinion is that the right of self-representation in the Ninth Circuit should not be — and had not been— extended beyond the thesis of the Supreme Court decisions in Adams and Johnson, supra. Neither Adams, Johnson, nor any other Supreme Court precedent prior to Faret-ta had extended to defendants in state criminal trials the right to self-representation. Faretta itself makes this point. Far-etta v. California, 422 U.S. at 814-15 , 95 S.Ct. 2525 . I conclude that despite the apparent breadth of the language of some of our decisions, the right to self-representation in this circuit, prior to Faretta , had not been extended to defendants in state criminal proceedings. Accord Houston v. Nelson, 404 F.Supp. 1108 at 1115 .