specially concurring:
Although I do not disagree with the majority’s due process analysis, I would rest the decision on the petitioner’s Sixth Amendment right to effective assistance of counsel. The petitioner sustained her burden of proving that counsel failed to render reasonably effective assistance and that failure resulted in the denial of fundamental fairness. (United States v. Elksnis (9th Cir. 1975) 528 F.2d 236.)
Under the circumstances that Judge Merrill describes, when defense counsel moved to withdraw, he ceased to be an active advocate of his client’s interests. Despite counsel’s ethical concerns, his actions were so adverse to petitioner’s interests as to deprive her of effective assistance of counsel. No matter how commendable may have been counsel’s motives, his interest in saving himself from potential violation of the canons was adverse to his client, and the end product was his abandonment of a diligent defense. (Cf. McKissick v. United States (5th Cir. 1967) 379 F.2d 754, 762.)