(concurring specially):
I agree with the majority that the judgment of the trial court dismissing Lee’s habeas corpus petition must be reversed. I feel compelled, however, to respectfully set down my views as to the relief that may properly be granted by this Court in light of Pate v. Robinson, 1966, 383 U.S. 375, 86 S.Ct. 836.1
In Pate v. Robinson, the factual situation was as follows: Robinson was convicted in the Illinois courts in 1959 for the murder of his common-law wife. The only defense raised at Robinson’s trial was insanity at the time of the offense. The issue of competence to stand trial, however, was also raised, but was decided adversely to Robinson by the trial court. Upon appeal, Robinson again raised the issue of competency. The Illinois Supreme Court, however, affirmed the conviction, finding that a hearing on mental capacity to stand trial had not been requested and that the evidence failed to raise sufficient doubt as to Robinson’s competence to require the trial court to conduct a hearing on its own motion. People v. Robinson, 1961, 22 Ill.2d 162, 174 N.E.2d 820. After certiorari was denied by the United States Supreme Court, Robinson filed a habeas corpus petition in the United States District Court, which was denied without a hearing. The Seventh Circuit Court of Appeals reversed. United States ex rel. Robinson v. Pate, 7th Cir. 1965, 345 F.2d 691. The order of remand instructed the district court to determine upon a hearing whether Robinson’s constitutional rights had been abridged. On cer-tiorari, the Supreme Court held that Robinson had been denied due process by the failure of the state to grant a hearing upon the issue of competency to stand trial. Concluding that a meaningful determination of that issue could no longer be made, the Court ordered Robinson’s release, subject to retrial by the state.
In reaching this result, the Court reasoned:
It has been pressed upon us that it would be sufficient for the state court to hold a limited hearing as to Robinson’s mental competence at the time he was tried in 1959. If he were found competent, the judgment against him would stand. But we have previously emphasized the difficulty of retrospectively determining an accused’s competence to stand trial. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). The jury would not be able to observe the subject of their inquiry, and expert witnesses would have to testify solely from information contained in the printed record. That Robinson’s hearing would be held six years after the fact aggravates these difficulties. This need for concurrent determination distinguishes the present case from Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), where we held that on remand the State could discharge its constitutional obligation by giving the accused a separate hearing on the voluntariness of his confession.
383 U.S. at 387, 86 S.Ct. at 843.2
*112Applying the rationale of the Supreme Court in Pate v. Robinson, and comparing the factual context in which we now act to that presented in Robinson, I am convinced that the relief ordered by the majority of this Court is improper.3 Clearly the primary impediment to an after-the-fact determination of competency is the passage of time. The Supreme Court in Robinson considered a passage of six years as sufficient to foreclose any such determination. By'its order in the present case, the majority would authorize a federal district court to determine an individual’s competency to stand trial fully twenty-five years after the trial took place. If the language of Robinson quoted above is to be accorded any significance, it must certainly be viewed as standing for the proposition that a meaningful hearing upon the question of Lee’s competency on October 27, 1943, cannot be had in 1967.4
Aside from the difference in the length of time since conviction, there is only one significant factual distinction between the instant case and Ro bin-son. Robinson, unlike Lee, asserted a plea of incompetency throughout trial and upon direct appeal. This factual distinction is of no significance to the resolution of the merits of Lee’s claim since the issue he raises cannot be waived. Lee v. State of Alabama, 5th Cir. 1967, 373 F.2d 82 (On Motion for Rehearing, Thornberry, J., dissenting). With regard to the issue of appropriate relief, however, this distinction supports rather than detracts from the appropriateness of, and the necessity for, the remedy afforded in Robinson. There, the Supreme Court indicated that the record of the state proceedings on or about the date of trial constituted the sole basis for any after-the-fact determination of competency. It would seem evident that when a defendant raises the issue of competency at his trial, the record will ordinarily lend itself to a more satisfactory after-the-fact resolution of that issue than if it had not been raised. A reading of Robinson indicates that, if the Supreme Court had been persuaded to allow a hearing on competency, the record available to the lower court for that purpose would have been superior to that upon which such a determination in the instant case would have to be based. Therefore, the Court’s refusal to allow such a resolution in Robinson certainly must be viewed as strongly indicating that the action of this Court is improper.
What has been said above demonstrates why Pate v. Robinson forecloses any present inquiry into Lee’s competency at the time of his trial. Therefore, this Court’s order in that regard is in error. I also view as inappropriate a remand to the district court for the *113purpose of affording the state a further opportunity to demonstrate that the question of Lee’s competency was in some way raised and resolved at the time of his trial. Lee has raised the issue of incompetency in three separate habeas corpus petitions and on no occasion has the state pointed to the existence of any evidence indicating a resolution of this issue at or about the date of trial. The record before this Court is entirely devoid of any such evidence, or the assertion that any exists. Furthermore, the majority points out that Lee was never given a hearing under § 426, the only statutory provision dealing with an inquiry into a defendant’s competency. Thus, any determination of competency, the existence of which the state is now given the opportunity to demonstrate, must have taken some form other than a hearing — the majority suggests the possibility of a pretrial determination by the trial court, or resolution by proper charge to the jury in the trial-in-ehief.5 The absence of any such determination is so clear,6 however, that I consider the majority action in this regard as inappropriate. The majority’s desire to afford the state every opportunity to demonstrate that there occurred a constitutionally adequate inquiry into the issue of Lee’s competency is an admirable expression of the desire to give heed to that delicate balance between the rights and powers of the states and the national government that characterizes our federal system. In this instance, however, the concern for the proper limitations upon federal power is overbalanced by the right of the petitioner to have an end to his twenty-one years of fruitless pursuit of his constitutional rights in both federal and state courts. A remand to the district court for determination of an issue that is now so clear will only result in added delay of final vindication of Lee’s rights.
For the reasons stated above, I would reverse with directions to the district court to order Lee’s release, conditioned upon the right of the state to retry him within a reasonable time.
. My views in this matter were initially expressed in a dissenting opinion to the denial of Lee’s motion for rehearing rendered by the panel of this Court that originally heard this appeal. Lee v. State of Alabama, 5th Cir. 1967, 373 F.2d 82.
. In Dusky v. United States, supra, the Supreme Court reversed a federal conviction on the ground that the record contained insufficient evidence to support the finding of the trial court that the defendant was competent to stand trial. In refusing to remand for a hearing on the question of the defendant’s competency at the time of his original trial, the Court stated:
In view of the doubts and ambiguities regarding the legal significance of the psychiatric testimony in this case and the resulting difficulties of retrospectively determining the petitioner’s competency as of more than a year ago, we reverse the judgment of the Court of Appeals affirming the judgment of conviction, and remand the case to the District Court for a new *112hearing to ascertain petitioner’s present competency to stand trial, and for a new trial if petitioner is found competent.
362 U.S. at 403, 80 S.Ct. at 789, 4 L.Ed. 2d at 825 (Emphasis added.)
. As I read the majority opinion, the district court is instructed upon remand to make at least one, and possibly three, factual determinations. The questions the court must answer are:
(1) Was there, in fact, a constitutionally adequate determination in the state court of Lee’s capacity to stand trial on or about October 27, 1943?
If not,
(2) Can the district court at the present time conduct an adequate hearing on the question of Lee’s competency to stand trial on October 27, 1943?
If it cannot, then Lee must be released subject to retrial.
If it can,
(3) Was Lee in fact mentally competent to stand trial on October 27, 1943? As will be developed, the second and third propositions, dealing with the' actual factual determination of Lee’s competency in 1943, are clearly foreclosed by Robinson; and the first proposition can and should be answered by this Court on the record before it.
. This is not to say that Robinson summarily forecloses in all cases the possibility of a post-conviction hearing on the issue of competency which satisfies constitutional requirements. I am convinced, however, that Robinson unequivocally states that such a hearing is not possible in the instant case.
. It has been held on several occasions that where a state by statute provides for a separate jury determination of the issue of a defendant’s competency, a failure to follow the statutory procedure is a denial of due process. United States v. Pate, 7th Cir. 1965, 345 F.2d 691, 695; Thomas v. Cunningham, 4th Cir. 1963, 313 F.2d 934, 938-39. The Alabama courts, however, have viewed the invocation of § 426 as discretionary with the trial judge, although no alternative procedure for determination of capacity is provided for by statute. Ex parte Bush, 1945, 247 Ala. 351, 24 So.2d 353; Sanders v. State, Ala.Ct.App.1964, 42 Ala.App. 419, 167 So.2d 174. Even still, on the facts of this ease, I would hold that in light of the evidence before the trial court, the failure to invoke the § 426 procedure constituted an abuse of discretion and a denial of due process. Neither alternative suggested by the majority can, in my mind, be viewed as compatible with due process in view of the fact that the § 426 procedure was available and there was strong evidence before the trial court of Lee’s mental imbalance.
. Aside from the fact that there is not even a hint of any such determination in the record before us, it should also be noted that when this issue was presented to the Alabama Supreme Court by a petition for writ of error coram nobis, Ex parte Lee, Ala.1946, 27 So.2d 147, that court alluded in no way to any determination of Lee’s present sanity other than the § 428 jury verdict of July 20, 1942. A reading of the discussion of the Alabama Supreme Court, id. at 149-50, makes it clear that if there had been any determination of Lee’s competency at the time of trial, the court would have made reference to it in refuting Lee’s claim.