(dissenting).
The writer respectfully dissents from the denial of these three petitions seeking post-conviction relief. These petitioners are entitled to an evidentiary hearing on their allegations of the denial of counsel to them when they pleaded guilty.
In each of these petitions, the relators allege that they were brought to court in poverty and in ignorance of their right to counsel. In each instance they pleaded guilty and received long penitentiary terms. In each instance, the record shows that they pleaded guilty without benefit of counsel, and each record fails to show a waiver of this right.
In each instance, our trial brothers denied an evidentiary hearing on the petition for post-conviction relief, apparently under the belief that Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), was not retroactive or else did not require counsel for the guilty plea (as contrasted with the trial) of an indigent; or that, at any rate, this court had so held in Ardoin v. Henderson, 255 La. 1029, 233 So.2d 923 (1970).1
Whatever the merits of our previous holding in Ardoin v. Henderson (decided on March 30, 1970), subsequently the United States Supreme Court has clearly held to the contrary, in a decision based on facts on all fours in all material aspects with those in the present instances. Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (April 5, 1971). There,' the Georgia Supreme Court was reversed, where it had denied relief (even after a post-conviction evidentiary hearing). The showing there made was that the petitioner had in 1944 pleaded guilty in a ■ Georgia state court to robbery, that he was an indigent, and that he had no attorney. The record was silent as to any waiver of counsel.
In reversing, our high court squarely held (once again) that a conviction or guilty plea of an indigent without counsel must be set aside — and “that where the assistance of counsel is a constitutional requisite, the *719right to .be furnished counsel does not depend'upon a’request”. 91 S.Ct. 1090.
The unanimous opinion of our nation’s high court was based upon Gideon v. Wainwright, and also upon such other decisions as. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968) (Gideon fully retroactive), Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962) (waiver nót -presumed from a silent record), and UVeges v. Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 197 (1948) (counsel required for guilty pleas as well as trials).
• -At‘this time we should perhaps be willing to concede that our high court’s interpretations of the effect and application of its own prior decisions concerning federal .constitutional right is more persuasive than our own prior limiting conjectures. Indeed, these interpretations are binding on this.. and-all. other-American courts. Consequently, we must view our decision in Ardoin v. Plenderson as overruled, relying as it ;did on a somewhat differing interpretation of the national tribunal’s decisions in point.
■•.Before closing, I might refer to the foído wing irrelevant circumstances:
, .1. The recent unanimous opinion of the Supreme Court in Kitchens v. Smith was subscribed by Burger, C. J., and Blackmon, J-C •: •....!
2. Although an evidentiary . hearing must be 'held under the present-circum-stances, the'trier’of fact is obliged only to weigh the testimony of the petitioner in the light'of sworn testimony as to surrounding circumstances, including that as"to' the customary practice of the deceased trial judge with regard to the appointment of attorneys. The trier' of fact at the post-conviction evidentiary hearing is hot obliged to accept testimony of the petitioner found to be incredible in the light of all the evidence at the hearing, even though 'such testimony is not directly contradicted due to unavailability of other witnesses due to death or other cause. :
Finally, I must respectfully suggest orderly government and efficient judicial administration, as well as respect for both the local and the national nature' of federalism, demand that state courts accept and apply United States Supreme' Court decisions on federal constitutional rights clearly in point, whether or not we agree with them. Pretermitting questions of legal philosophy and obedience to’ our constitutional oath, state courts are the proper forum for determination of whether state action has violated federal rights of our people. .The federal courts .are bound by the same Supreme Court decisions as wé are. If we fail even to allow a post-conviction day in court., upon a ciaii]n of *721violation of constitutional duty, a federal forum isialltoo readily available.2
For'these reasons I must respectfully dissent.
. It is of some interest that, actually, this court had ordered a full evidentiary hearing in Ardoin on the relator’s petition, see 254 La. 832, 227 So.2d 374 (1969), before deciding the cited subject opinion at 233 So.2d 923 on the merits on the basis of the record made up at this evidentiary hearing.
. Compare, e. g., our cursory denial of post-conviction relief upon the identical contention now before 'us in State ex rel. Johnson v. Henderson, 256 La. 825, 239 So.2d 347 (Sept. 25, 1970), with the cursory order two months later (December 2, 1970) of the federal district court setting aside the 'guilty plea on the fact of the papers (‘Mu the light of the position taken by the State in failing to áf- • ford a hearing and in effect admitting he was1 not afforded representation, this Court has no alternative but ■ to grafat'-’ petitioner’s writ of habeas corpus”), Alphonse Johnson v. Henderson, Civil Action No. 16,162 United States District Court for the Western District of Louisiana. • ■ • : :