(dissenting).
The order appealed from, in my judgment, should be affirmed. True, as disclosed by the opinion, there were discrepancies in the records and conflict in the oral testimony of witnesses relating to the vital issue as to whether petitioner had the assistance of counsel at the trial which resulted in his conviction. The resolution of such discrepancies and conflict was, under our system, a matter for the district judge and not this court. He was in a better position to weigh and evaluate the testimony and to1 make an ascertainment of the factual situation.
I need not discuss the conflicting proof because the majority opinion discloses that this court has weighed and evaluated the testimony of the witnesses in reaching a result different from that of the district court. In my judgment, it cannot be plausibly asserted that the finding of the district court was “clearly erroneous” so as to make it an exception to Rule 52(a) of the Federal Rules of Civil Procedure. If this court is to weigh the conflicting testi*18mony in this case and resolve a factual issue contrary to the finding of the district court, I see no reason why it could not do so in every case where the proof is in conflict. Such a practice would result not only in confusion hut would enlarge the proper function of a reviewing court.