dissenting:
Despite the study and effort the members of the court have lavished on this case, I must respectfully dissent because the material with which we have worked was not in shape for our labors. The findings of the trial court are ambiguous. Both the majority and other dissenters must parse sentences and plumb words to draw meanings, and the exercise in hermeneutics then leads them to different factual conclusions. I cannot agree with either exegesis for I cannot tell whether the trial court found: (a) the lawyers, who appear to have done all that counsel could up to the time the decision to appeal or not to appeal was faced, merely discussed the question of appeal in Bonds’s presence and themselves reached the decision not to appeal; (b) the lawyers informed Bonds that he had a right to appeal and he, sixteen years old and grateful for the aid of his ex-teacher and the more experienced lawyer who had joined in his defense, said, in effect, “I don’t know enough to decide this question, which may mean my life or death; I want you to decide what’s best for me;” (c) Bonds did (or did not) know that he had a right to appointed counsel on appeal.
For this reason, the panel should have remanded the case to the trial judge to make explicit findings, or to say that he could not, and, if so, why he could not. (Compare Rules 7 and 8, Rules Governing Section 2254 Cases, which became effective February 1, 1977. This petition was, however, filed December 26, 1974.) Having granted a rehearing en banc and having learned what we now know, despite the effort that we have expended, we should avoid the construction of monumental principles on a bed of factual quicksand, but should merely vacate the panel decision and remand.
Unless the facts are now no longer ascertainable, this course would likely resolve the matter. For, if the trial court found (as the record implies) that Bonds knew he had a right to appointed counsel, and he delegated to competent counsel the power of decision, I do not believe that, after a quarter century delay, Bonds may exact retroac-tivity in punctilious detail from the Lump-kin statement that counsel must advise the defendant of the procedure and time limits that would be involved in an appeal. What purpose, under those facts, would such advice have served?
If, on the other hand, Bonds was treated as a passive spectator, and counsel, with motives however noble, arrogated the decision of his destiny, they did not comply with the requirements of Thomas v. Beto, 5 Cir. 1970, 423 F.2d 642, and Wainwright v. Simpson, 5 Cir. 1966, 360 F.2d 307, both of which the majority would consider an accu*324rate delineation of counsel’s duty at the time Bonds was convicted.
It is difficult to see how we could rest decision on Shiflett v. Virginia, 4 Cir. 1971, 447 F.2d 50. The Fourth Circuit opinion stresses the danger of “a flood of belated appeals.” 447 F.2d at 57. Bailey v. Ault, 5 Cir. 1974, 490 F.2d 71, was decided four years ago, and we have since confronted the issue only in this case.1 The judicial weather forecast was apparently in error.
Bonds has been confined for 25 years; his fate should not be determined in a factual blur. The state will not suffer unduly from remand because Bonds remains confined. Remand is the long way around, but it is the short and the only sure way to a just result.
. In Haggard v. State of Alabama, 5 Cir. 1977, 550 F.2d 1019, 1023, we indicated that an indigent convicted in 1968 had a right to be told of his opportunity to appeal, and cited Lumpkin, but Thomas and Simpson required this much. See also Dixon v. Caldwell, 5 Cir. 1972, 471 F.2d 767 (failure to acknowledge petitioner’s request for an appeal on his behalf).