(dissenting).
I respectfully dissent in part. If the only ground in the case were Sims’ right to testify, I would agree with the result reached by the majority. My difficulty is with its disposition of Sims’ mental competence contention.
The question is whether Sims’ Fifth and Fourteenth Amendment right to due process was violated by the Indiana courts’ refusal to provide him with a psychiatric examination and sanity hearing before pronouncing sentence. The district court judge thought this was the “more serious allegation raised by the petition.” In my opinion the district court erred in not ordering Indiana to grant a new trial at which a preliminary hearing should be held to determine Sims’ competence. My view is based primarily upon Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
It is true that the facts in Robinson were more favorable to Robinson than the facts in the case before us are favorable to Sims. I think Robinson teaches, however, that we should scrutinize decisions denying hearings, upon claims of mental *668incompetence, even if the facts are not similar to those in Robinson. See Hans-ford v. United States, 124 U.S.App.D.C. 387, 365 F.2d 920 (1966). This is especially true for indigents who do not have the financial resources available to more fortunate defendants.
The majority shares the opinion of the district court that within the meaning of Robinson the material presented to the Indiana trial and supreme courts did not raise the existence of a bona fide doubt as to defendant’s competence.
Sims does not challenge the constitutionality of the Indiana statute, which provides generally that “at any time before the submission of the cause to the court” it “shall” order a sanity hearing if there is “reasonable ground” for believing the defendant to be insane. Burns’ Ind.Stat.Ann. See. 9-1706a Supp. (1956 Repl.). The Indiana Supreme Court, in affirming Sims’ conviction, and the district court in the proceeding before us, thought that since the insanity issue was not raised prior to submitting the case to the jury, the trial judge had discretion whether to hold a hearing. Both courts thought, as the majority here thinks, that the material presented to the trial judge was insufficient to require a hearing under the statute.
The material considered by the district court and the majority, relevant to this point, is the affidavit of Sims’ attorneys in support of the new trial motion, his own pro se activities at the original trial, and the pre-sentence probation report.' The Indiana trial court and the district court both commend Sims’ two court-appointed attorneys — who served for eight weeks without compensation in this case —for their probity and professional expertise. The affidavit states the belief that “defendant is insane, and that he was insance during the trial * * * ” 1; that they interviewed him shortly after conviction and found him “unable to comprehend the fact” that he was finally convicted of kidnapping, and that he accused the attorneys of having been bribed not to protect his interest. The affidavit states that the attorneys are not expert in psychiatry and that they did not recognize Sims’ incompetence from his bizarre performance before and during the trial. Both the district court and this court view the affidavits as “con-clusory” and devoid of facts or expert opinion.
At the hearing on the motion for new trial in the Indiana court there was ample opportunity for the judge to develop facts from the attorneys for the basis of their argument that “there was something wrong with this man mentally.” If the judge thought expert testimony was needed in support of the motion, he could not have reasonably expected Sims himself to provide it. The trial court could have requested that a psychiatric examination be made and a report submitted on Sims’ competence. This would not have consumed undue time.
The majority opinion refers to Sims’ “quick mind and a clear grasp of the seriousness of the situation confronting him,” and to the district court’s, and one of Sims’ attorneys’, appraisal of Sims’ *669intellect. However, a quick mind and an apparent understanding of a serious situation do not obviate the possibility of a serious mental disorder. See Pate v. Robinson, 383 U.S. 375, 385-386, 86 S.Ct. 836, 15 L.Ed.2d 815; Oliver, Psychiatry and Mental Health, 73-78 (1950). See also Menninger, The Vital Balance, 222-240 (1963), for several examples of rational behavior coupled with extreme personality disorders.
This court states that the pre-sentence report adds nothing to the questions of Sims’ competence. However, the report does state that Sims has a “borderline intelligence,” that he has a “convenient memory or is a pathological liar,” and “is a threat to society.” The opinion, moreover, makes little of Sims’ conduct during his voir dire examinaion of jurors at the original trial which prompted the trial judge sua sponte to declare a mistrial. Sims had repeatedly refused court-appointed counsel. His examination of jurors was not only extremely aggressive and indeed insulting on the subject of racial discrimination, but also was interspersed with arguments and repeated threats to the judge that Sims would leave the courtroom. The judge observed this performance with an experienced eye and no doubt thought this irrational behavior was artful. At that time however the judge did not have the sworn view of the court-appointed attorneys or the probation report. They were not before him until the motion for a new trial.
This court has apparently resolved the sanity question against Sims without a state court hearing at which facts could be developed to bind federal courts. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). I consider that the material presented, together with the Indiana judge’s own previous observation, should have raised a reasonable doubt sufficient to impel that court to order a hearing at that time into the question of Sims’ competence. It seems anomalous that what struck the majority as a “deep-seated feeling” about racial persecution, and the district court as “delusions,” did not evoke a similar response from the Indiana trial court, and together with the affidavit and report raise a “reasonable doubt” of Sims’ competency sufficient to impel an inquiry.
Sims’ trial, conviction and sentence took place in 1964. In view of the passage of time since then, and the impracticality of a nunc pro tunc inquiry into Sims’ competence — see the remandment order in Robinson — I would reverse and order the petitioner discharged unless the State of Indiana grants him a new trial within a reasonable time.
. 18 U.S.C. Sec. 4244, Mental Incompetency after Arrest and before Trial, and Sec. 4245, Mental Incompetency Undisclosed at Trial, indicate the Congressional concern that defendants in federal cases be protected against prosecution, conviction and sentence where there is reasonable cause for believing the defendant is mentally incompetent, and impose upon the United States Attorney the obligation, if he has that belief, to move for determination, and an obligation upon the court where a motion is made in behalf of an accused or upon the court’s own motion where such a belief is held; and under Sec. 4245 impose a similar obligation upon the Director of Bureau of Prisons to bring to the attention of the Attorney General who in turn shall transmit the Director’s belief to the sentencing court which shall thereupon have the obligation of conducting a hearing. While these Sections pertain to federal cases, they have implications for federal habeas corpus proceedings where there is a claim of federal unconstitutional tr:al of a mentally incompetent.