Under the advice of his lawyer, supported by the strong urging of an elder brother, John Buck Jacobs, Jr., after some initial hesitation, pleaded guilty to one of four counts of an indictment for violating the Internal Revenue laws relating to distilled spirits. He was sentenced to serve a term of forty months. Some weeks after his arrival at the Atlanta Penitentiary, he filed a petition under Title 28, section 2255. After alluding to the requirement that a guilty *572plea must be knowingly and intelligently entered, the petitioner recited that he did not recall having entered the guilty plea or any of his conversations with the lawyer, and that from time to time he had suffered similar lapses. These allegations might be somewhat wanting under strict rules of pleading but the judge, evidently making allowance for the fact that it was a pro se petition, perceived What the petitioner was driving at. Since the petitioner was an indigent, counsel was assigned. The issue being the petitioner’s mental condition when he pleaded guilty, counsel promptly moved the court to designate an independent psychiatrist to make a mental examination at government expense. The judge declined to make the requested designation at that time, but stated that he would hold a hearing on the petition for relief and if the need for a psychiatric examination should then appear he would order it.
At the hearing Jacobs was not put on the stand to support the petition, but relatives and neighbors, all laymen, offered their observations of his mental condition and background. His mother told of episodes when the defendant would seem unaware of his surroundings and would suffer loss of memory. She also recounted that when he was fourteen years old he was sent to Duke University Hospital for treatment of that condition. The hospital report, which is in the record, indicated that Jacobs’ I.Q. was only 57, placing him in the Low Moron category. Others testified that at times Jacobs had “spells” during which there was “something wrong” with him; also, that prior to and immediately after the trial he seemed “upset and confused.” One witness testified that on occasion during the petitioner’s childhood he seemed “different” from other children, and that once he attempted suicide.
The Government called Jacobs’ trial counsel who testified that he noticed no mental abnormality in his client. The United States also produced Dr. Lawrence Bryan, a clinical psychologist, employed at the Atlanta Penitentiary, under whose supervision the Minnesota Multiphasic Personality Inventory was administered. He stated that the examination is not normally given to entering inmates and suggested that it may have been administered to Jacobs because of his history of mental problems and poor memory and for the further purpose of determining whether or not he was feigning illness. Dr. Bryan, the government psychologist, gave it as his opinion both that Jacobs was attempting to give an unjustified impression of mental illness and that he considered Jacobs of “inferior intelligence” but not “mentally deficient.” The witness had not personally conducted the test, and cross-examination may have developed some doubt as to whether the testing had been performed by a competent person.
The District Court found this evidence insufficient to raise a substantial issue as to the petitioner’s ability to understand the nature of the original proceedings against him and to assist counsel in his defense. Without ever acting on the motion for the appointment of a psychiatrist, it denied the section 2255 motion.
We express no final opinion as to the District Court’s findings in respect to Jacobs’ mental condition when his guilty plea was entered. We are of the view, however, that the District Court should have granted the request for an independent psychiatric examination.
While Jacobs’ motion alone may not have furnished a sufficient initial basis for ordering a psychiatric examination, the testimony at the hearing showed that the claim of mental incapacity was substantial and not frivolous. Dr. Bryan recognized that Jacobs was “somewhat inferior” in intelligence and “quite possibly has some handicap of emotional instability,” but the two psychiatrists who collaborated with Dr. Bryan in the examination, but were not called as wit-nesss, diagnosed Jacobs’ condition as one of “Mental Deficiency; Borderline Intelligence.”
At least enough is shown here to warrant further inquiry. Although the need *573for a psychiatrist’s services was no less than the need for the assistance of counsel, appellant was limited to the testimony of untrained relatives and friends. The testimony of the nonexpert witnesses could have served as the foundation for further investigation by a medical expert, but the court-appointed attorney’s efforts were restricted by the lack of such light and guidance as only a psychiatrist might have furnished. No opportunity was afforded for medical appraisal of the lay testimony and a more sophisticated exploration of the problem.
Unquestionably in the proceedings below the defendant, if financially able, would have had the right to call a privately retained psychiatrist as a witness. It is obvious that only his inability to pay for the services of a psychiatrist prevented a proper presentation of his case. The Supreme Court has unmistakably held that in criminal proceedings it will not tolerate discrimination between indigents and those who possess the means to protect their rights. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1961). In the circumstances shown, a substantial question having arisen as to the defendant’s mental capacity at the time of trial, the appointment of a psychiatrist at government expense was required.
The handicap under which the court-appointed lawyer was compelled to present the case contrasts markedly with the advantage enjoyed by the Government. While its witness was only a psychologist and not a psychiatrist, he was permitted to offer his opinion on the ultimate issue without affording an opportunity to the petitioner to effectively meet it by a fully informed cross-examination. It is true that Dr. Bryan’s examination was made in the regular course of the prison routine, but when he was a witness for the United States in the present proceeding it was in an adversary capacity. On the other hand, Jacobs’ position could not be fully developed for lack of available professional assistance.
In the interest of justice, 28 U.S.C.A. § 2106 (1959), the order dismissing the section 2255 motion should therefore be vacated and the case remanded with directions to appoint an independent psychiatrist to examine Jacobs. If, after a further hearing, it should be established that the defendant was mentally competent to stand trial when he pleaded guilty on March 26, 1964, the conviction and judgment based thereon will stand. If it is found that he was then incompetent, the guilty plea must be stricken and the judgment based thereon set aside.
Vacated and remanded for proceedings not inconsistent with this opinion.