(dissenting):
I respectfully dissent. There are two important issues in this case: first, the showing required to raise the denial of a continuance of a trial to a denial of constitutional due process, and second, the extent to which the amount of preparation for trial by privately retained counsel is to be deemed state action within the meaning of the Fourteenth Amendment. I would remand this case for a full development of the facts because it involves critical matters that all court systems are facing, which cannot be properly resolved on the slim 33-page transcript of the state habeas corpus hearing.
This dissent is not written for the purpose of resolving the complex problems involved in this case, but rather for the purpose of recognizing that the ramifications were not fully and properly considered before the issuance of the writ of habeas corpus. Perhaps before the result reached by the majority becomes the binding precedent in this Court, it would be well to consider some of the thoughtful suggestions made by Judge Henry J. Friendly in Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970).
The crime of attempted armed robbery was committed on April 25, 1969; petitioner was charged in a bill of information on April 30, 1969; he was arraigned on May 8, 1969, at which time he was represented by retained counsel; he stood in a lineup on May 13, 1969, represented by his retained counsel; and he was tried on June 12, 1969, represented by the same retained counsel. The retained counsel had represented petitioner in prior criminal cases. Petitioner was found guilty and was sentenced on July 2,' 1969. A year later, he first applied for release on the ground that he was deprived of his constitutional right to counsel. The District Court granted the writ, on the state record, without any further evidentiary hearing. On the same record, the state court had resolved the factual issues against petitioner. The District Court resolved them in favor of petitioner.
I.
Petitioner’s counsel requested a continuance of the state trial on the ground that he had no opportunity to confer with the petitioner and was not prepared to go to trial. The continuance was denied. The state court felt that the petitioner was attempting to evade trial:
After the court denied the motion for a continuance, Mr. Masinter [West’s attorney] conferred with relator [West], and then came up to the Bench and informed the Court that his client had advised him that his mother had retained the services of another attorney, George Sladovich, Esq., [the attorney who associated *1036Mr. Masinter in the ease]. The Court advised Mr. Masinter that the ease was going to trial because the Court felt that this was a ploy on the part of the defendant to evade trial. The evidence also discloses that Mr. Masinter had been representing relator for several years, and had represented him in several cases prior to this one in the Criminal District Court.
Since, the denial of a continuance is clearly state action under the Fourteenth Amendment, it is the crux of the problem in this case, and the majority neither mentions it nor pays the slightest heed to the long standing rule in this Circuit, and in most states, that the grant or denial of a continuance is within the sound discretion of the trial judge. See, e. g., United States v. Abshire, 471 F.2d 116 (5th Cir. 1972); 17 Am.Jur.2d Continuance § 27 (1964); 17 C.J.S. Continuances § 5 (1963).
At the admonition of the Judicial Conference of the United States, every district court in this Circuit has recently adopted a plan for expediting criminal trials. Many state courts are pursuing similar measures. The criminal justice system now seems firmly committed to the doctrine that the public has as great an interest in expeditious trials as do any defendants.
Every trial judge of experience has probably heard most of the excuses that can be given for delaying the trial of criminal defendants. A person who knows himself to be guilty and who recognizes that there is little or no chance of escaping long term confinement has little interest in a speedy trial. Often, the most effective thing counsel can do is to postpone the trial as long as possible. Evidence may be lost, witnesses may become unavailable or their memories may fade, the case may pass into the hands of less zealous prosecutors, and a number of other things might happen that would make time work to the advantage of the defendant. Any means used for a continuance of his trial may help the defendant. If this delay can be accomplished by lack of preparation, then lack of preparation may be exactly what the defendant wants.
But great pressures are being brought on each trial court to dispose promptly of the business before it, and therefore, to deny motions for continuance. Yet, needless to say, constitutional rights cannot be foreclosed in the interest of speed and current, up-to-date dockets.
This brings us face to face with the critical question: what latitude will be given to trial judges in actually controlling this area of the judicial system— and more importantly, in the federal-state context, how tightly does the Constitution control the state trial judge’s decision as to whether a trial should be postponed at the request of defendant and his retained counsel? There seems little point in following a broad rule as; to the discretion of trial judges on the continuance of cases if we are to follow a narrow rule in the effective counsel-trial preparation dichotomy.
To resolve this question, facts are needed. Was the counsel’s protestation as to other pressing matters that prevented preparation factually based? Was the state trial court’s determination that the requested continuance was a ploy on the part of defendant to evade trial erroneous? At the heart of the matter: To what extent will the criminal justice system allow the public requirement to expedite the trial of cases to be thwarted by retained counsel’s failure to prepare for trial? As an overlay to the whole problem, we should remember that the greatest right preserved to an accused citizen by the Constitution is the right to retain his own counsel, including busy counsel who have other responsibilities in addition to the representation of the defendant in the case at bar. I would require an eviden-tiary hearing to determine the facts concerning the requested continuance and the state court’s denial thereof.
*1037II.
This Court has not resolved the question as to what conduct of retained trial counsel the state is responsible for under the Fourteenth Amendment. Although McGriff v. Wainwright, 431 F.2d 897 (5th Cir. 1970), stated flatly that “misfeasance by privately retained counsel is not state action and therefore does not constitute a deprivation of due process or equal protection,” 431 F.2d at 899, it has apparently enjoyed little recognition in the opinions in this Court. Neither has Andrews v. Robertson, 145 F.2d 101 (5th Cir. 1944), which held that the effectiveness or ineffectiveness of retained counsel in state criminal trials is beyond the purview of the federal courts.
In Bell v. Alabama, 367 F.2d 243 (5th Cir. 1966), the Court said that there is no difference between appointed and retained counsel, but the Court there merely remanded for an evidentiary hearing. The ease is not a definitive holding as to the standard to be applied. In several cases panels of this Court have said that retained counsel and appointed counsel are subject to the same standard of effectiveness, but then they have held that counsel in those cases met the standard, so the question did not have to be decided to dispose of those cases. E. g., Holland v. Henderson, 460 F.2d 978 (5th Cir. 1972). Of course, the Court was at one time concerned with whether appointed counsel had to meet the same standard as retained counsel, but it had little- trouble deciding that the ineffectiveness of state-appointed counsel is a state responsibility. See United States v. Pinc, 452 F.2d 507 (5th Cir. 1971); Worts v. Dutton, 395 F.2d 341 (5th Cir. 1968); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965).
Although involving retained counsel in a federal prosecution, the case of Porter v. United States, 298 F.2d 461 (5th Cir. 1962), is not decisive of the point because the case was remanded for an evi-dentiary hearing on the charge that, unknown to the defendant, the retained attorney was in such a duplicitous position that he refused to call a key witness, the narcotics officer, whom he also represented.
Regardless of what analysis may be made of the various eases in our Court, it is safe to say that we have indicated contrary dispositions of the problem. But by affirming the District Court’s grant of the writ of habeas corpus to a state prisoner in this case, this majority clearly holds that the apparent failure of retained counsel to prepare properly for trial constitutes state action which reaches constitutional proportions. On the record before us, I am unwilling to charge the state with this responsibility.
Although the state trial transcript has not been made available in the Federal Court, it appears that petitioner was identified at the lineup and at the trial by several eyewitnesses. Fifteen witnesses were subpoenaed by the prosecution. There is nothing in the record before us to indicate what prepared counsel might have done. Although this consideration is irrelevant in the Gideon context where there is a complete absence of counsel, it should become highly important in judging state responsibility for unpreparedness of retained counsel. The system will serve no useful purpose in requiring retained counsel to run up expense in preparation that will obviously be of no use to his client. What would an investigation have uncovered? What witnesses could have been called? How was petitioner’s defense prejudiced ? Petitioner has never, in any court, shown how his defense would have benefited by delay for further preparation by his trial counsel. The record indicates that he contemplated an alibi defense. At the very least, we should require a showing of what that defense might have been, including the identity of corroborating witnesses — some showing that the defense could be asserted in good faith.
At the very least, the trial record should be studied before the state judgment is set aside on the ground that petitioner was not adequately represented at the trial.