(concurring in part and dissenting in part).
I agree that appellant cannot raise on appeal for the first time the contention that the state trial judge committed constitutional error by making the statement attributed to him in appellant’s brief. However, I would not hold an unrepresented litigant to the standards of precision in pleading expected of trained counsel. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
An examination of the file indicates that the District Court sent appellant a questionnaire requesting him to furnish details about his petition for a writ of habeas corpus. In response to the direction to state concisely the grounds on which he based his claim of ineffective assistance of counsel, appellant responded, “refused to call witnesses in behalf of accused.”
If appellant had witnesses and his trial counsel refused to call them without good cause, appellant would be entitled to relief. At a minimum the District Court should have examined the transcript to see if this was true. If such an examination were inadequate to ascertain the truth of the contention, then an evidentiary hearing would have been required. To dismiss such an averment as conclusional disregards precedent and punishes appellant for his lack of professional training or representation by trained counsel.
I would reverse and remand for an examination of the transcript or for the holding of an evidentiary hearing if required.