(dissenting).
The writer respectfully dissents from the denial of these three petitions seeking post-*727conviction 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.
3n 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 right 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 not 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).
*729At this time we should perhaps.be willing to- concede that our high court’s interpretations of the effect ánd 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 Ar•doin v. Henderson.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 following, irrelevant circumstances:
1.' ■ The recent unanimous opinion of the .Supreme Court in Kitchens v. Smith was subscribed by Burger, C. J., and Blackmon, J-;
2: '• Although '-an evidentiary hearing .-must-’ be held under the present circumstances, 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; not 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 obédience to our constitutional oath, state courts are the proper forum for determination of whether state, action has violated federál rights of our people.’ The federal courts are bound by the sáme Supreme. Court decisions as- .we are. -If-,we fail even to allow a post-conviction day in court upon a claim of violation of -constitutional duty, a federal forum- • is all too readily available.2
For these reason I must respectfully dissent. ■ ’
. It is o£ 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 (“In the light of the position taken by the State in failing to afford a hearing and in effect admitting he was not afforded representation, this Court has no alternative but to grant 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.