(dissenting) :
While I join with the majority in rejecting petitioner’s attack on the racial composition of the grand jury, I cannot subscribe to the holding that the State habeas corpus record provides a sufficiently reliable and complete factual foundation for the final denial of Federal relief. On the contrary, the Tattnall County proceedings seem to me to fall far short of the minimum standards established by both Townsend v. Sain 1 and 28 U.S.C.A. § 2254(d).2 Accordingly, I *1231would remand to the District Court for a new evidentiary hearing and findings of fact on petitioner’s claim that he was denied (or was ineffectively assisted by) counsel.
Indiscriminate Federal interference with the State fact-finding process is, of course, neither warranted nor desirable, as this Court has affirmed and reaffirmed on numerous occasions.3 In the belief that it is primarily the responsibility of the States to determine post-conviction claims of denial of Constitutional rights, we have frequently commended and encouraged the States’ continuing inventiveness in devising and implementing new techniques for determining and expediting habeas corpus and related proceedings, and we have consistently sought to utilize their post-conviction findings to the fullest extent possible.4 In cases where such judicial machinery produces a complete, fair and reliable resolution of the conflicting factual issues underlying a claim for Federal relief, State factual determinations must nearly always be accorded finality.
Clearly, however, this is not such a case. Unlike Washington v. Smith, 5 Cir. 1969, 417 F.2d 301 and similar decisions 5 upon which the Court relies, in which we sanctioned the practice of according virtually conclusive weight to State findings of fact grounded wholly or for the most part on depositions or interrogatories, the State habeas hearing here was both procedurally and factually inadequate because Hunt was never afforded any meaningful opportunity to confront, either directly or through interrogatories, the only witness who contradicted his claim. A careful reading of the entire record, far from revealing those indicia of reliability, trustworthiness and completeness demanded by Townsend, discloses such a lack of hard, cold facts bearing upon petitioner’s denial of counsel claim that the sufficiency of any of the resultant findings must be viewed with skepticism.
In seeking post-conviction relief from both the State and Federal courts Hunt has consistently maintained, under oath and cross-examination, not merely that he was ineffectively represented by his court-appointed counsel, but that he was not represented at all. Of course, the deposition of Mr. Warchak contradicts this contention, yet there remain so many unexplained omissions that the absence of evidence on many points becomes of critical importance.
For example, while we have before us copies of the arrest warrant, indictment, sentence and order of commitment from the State court, we have no copy of the plea, signed or otherwise, upon which the conviction rests. We have no transcript revealing what transpired when the plea was entered. Cf. Boykin v. Ala*1232bama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. We have no written order of the Court appointing Mr. Warchak as counsel or providing for his compensation. We have no documents or other court papers bearing Mr. Warchak’s signature or otherwise indicating that he was ever present at any stage of the proceedings. In short, the credibility choice resolved against the petitioner was based entirely upon one short, unsigned deposition, the original copy of which neither we nor the District Court have had the benefit of examining.
The deposition itself raises several unanswered questions. The District Court found as a fact (R. 82), as did the State court (R. 9) that Hunt pleaded guilty in September 1956 to one count of robbery by force following an indictment on two counts. Attorney Warchak, however, stated positively that “the plea was most welcome to him on both counts * * * and he entered a plea one after the other” (R. 66) and that “Robert Hunt entered a plea of guilty to both counts” (R. 64). Certainly Mr. Warchak could not be faulted for forgetting the details of a case nearly 12 years old, but since he recalled the facts with sufficient clarity to be able to recount them in detail his inability to describe accurately the character of the plea suggests that the absence of cross-examination may well have been of fundamental significance.
Moreover, although he stated in detail the circumstances leading up to the plea, including descriptions of the violent nature of the robbery and the likelihood of community hostility, Mr. Warchak did not once refer to the evidence- — or whether any such evidence existed — -linking the defendant with the crime. The complete absence of any reference to facts evidencing guilt as related in the attorney’s ex parte deposition was crucial to petitioner’s claim, and only through cross-examination could he have clearly established its true significance.
The deficiencies in the deposition are really highlighted by the Court’s attempt to bolster the State record by suggesting that Hunt was accorded a meaningful opportunity to counter Mr. Warchak’s testimony through the use of written interrogatories.6 A layman is not a lawyer merely because he talks like one. Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. An indigent prisoner, denied appointed counsel and lacking formal legal training (and perhaps any formal education at all) can hardly employ such complex procedural devices effectively and intelligently unless he is at least specifically instructed and advised on how he is to proceed.7
Although in seeking post-conviction relief a petitioner may not be entitled to counsel as a matter of right,8 he should at least be afforded a realistic opportunity to subject the opposition’s critical testimony to the fire of cross-examination. A realistic opportunity depends on the circumstances, which in this case include a total lack of rudimentary advice by the Judge to the indigent, untrained layman. A hearing that as a practical matter denies this opportunity under the subterfuge of “allowing” written interrogatories provides neither a factually *1233adequate nor a proeedurally fair record for a Federal court.9
Of course, I do not even remotely suggest that petitioner’s claim has been established on this record. What is clear to me is that the ambiguities, inconsistencies and gaps in the factual landscape painted by the State habeas record cannot be satisfactorily resolved other than by a full and complete evidentiary hearing.10 Townsend v. Sain, § 2254(d) and our own decisions 11 demand nothing less.
. 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed. 2d 770.
“Even if all the relevant facts were presented in the state-court hearing, it may be that the fact-finding procedure there employed was not adequate for reaching reasonably correct results. * * * Even where the procedure employed does not violate the Constitution, if it appears to be seriously inadequate for the ascertainment of the truth, it is the federal judge’s duty to disregard the state findings and take evidence anew.”
372 U.S. at 316, 83 S.Ct. at 759, 9 L.Ed. 2d at 788.
. “In any proceeding instituted in a Federal court by an application for a writ of habeas corpus * * * a determination after a hearing on the merits of a factual issue, made by a State court * * * shall be presumed to be correct, unless the applicant shall establish or it shall other*1231wise appear, or the respondent shall admit—
% Sfc s{{ s}s >(s
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
íjí Sfc sj« }■;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding;
* * * * *
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made * * * is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record.”
. E. g., Boyer v. City of Orlando, 5 Cir., 1968, 402 F.2d 966, 967-968 and cases cited therein; Peters v. Rutledge, 5 Cir., 1968, 397 F.2d 731; Milton v. Wainwright, 5 Cir., 1968, 396 F.2d 214; McGarrah v. Dutton, 5 Cir., 1967, 381 F.2d 161.
. E. g., as in the case of Texas’ post-conviction relief statute, Vernon’s Ann.Tex. C.Cr.P. 11.07. See State of Texas v. Payton, 5 Cir., 1968, 390 F.2d 261; Waters v. Beto, 5 Cir., 1970, 423 F.2d 934; Woodbury v. Beto, 5 Cir., 1968, 395 F.2d 189; Beto v. Conley, 5 Cir., 1968, 393 F.2d 497.
. For example, Wiggins v. Smith, 5 Cir., 1970, 434 F.2d 245.
. While Mr. Warchak might have been subpoenaed by the petitioner, Hunt was unable to pay the necessary witness fee and mileage allowance required for an in-court confrontation. When Hunt protested that he was a pauper and had no way to pay fees or mileage, the Trial Judge said nothing. The availability of the attorney is another factor that further undercuts the adequacy of the deposition used here.
. The State judge advised Hunt that “you can mail the questions and he can mail you back the answers” (It. 35). The record discloses no other advice or assistance. There is nothing to indicate whether Hunt was ever provided with Mr. Warchak’s mailing address or with a copy of the deposition.
. However, the absence of counsel in post-conviction proceedings is relevant in determining the § 2254(d) adequacy of the State hearing and “is particularly critical when evidentiary procedures which negate the normal civil right of cross-examination are to be followed in the habeas hearing.” Walker v. Smith, 5 Cir., 1971, 439 F.2d 392, 394.
. We have recognized as much in Walker v. Smith, supra, 439 F.2d at 395: “Against the backdrop of this cause in which the claims of an indigent illiterate are denied without a hearing, based upon a record which is supported only by uncrossed written interrogatories to his court-appointed attorney whose competency has been specifically attacked, the trial court should have held an independent hearing to determine whether there was any basis for federal habeas corpus relief.” Unless Hunt’s conceded literacy somehow distinguishes his incompetency as a lawyer from Walker’s, this case is directly in point and should control the disposition of this appeal.
. I would leave to the Federal District Court the initial determination of whether the further hearing should be held by the Federal Court or in the State court under Georgia’s post-conviction relief statute (see note 3, supra) subject to stringent instructions that the burden is on the State to insure a fair and complete hearing, Mobley v. Smith, 5 Cir., 1971, 443 F.2d 846, p. 848.
. Porter v. Sinclair, 5 Cir., 1967, 389 F.2d 277. “A factual hearing is an illusory benefit * * * if it is not a meaningful one.” O’Neal v. Smith, 5 Cir., 1969, 413 F.2d 269, 270.