dissenting.
I respectfully dissent from the majority’s opinion in this case. The issues presented by the circumstances of this case are difficult and cannot be summarily disposed of by reference to Jenkins v. Bordenkircher, 611 F.2d 162, 1979, its companion case. Unlike the district court in Jenkins, the district court in the instant case did not request the *728complete transcript of the state trial, from which it could ascertain after a searching scrutiny that the defendant’s right to a fundamentally fair trial was not in fact prejudiced. Because no such determination was made by the district court in this case, I would remand for a careful review of the entire trial record and a determination on the issue of prejudice.
While I do not contend that the circumstances presented by a trial judge presiding over a defendant whom he has previously prosecuted on several occasions constitute a per se violation of the defendant’s right to a fair trial, I do contend that such a circumstance raises the strong possibility of prejudice to the defendant’s right to a fair trial. In such a case, a federal court reviewing the state conviction has a clear duty to carefully scrutinize the record for any evidence of prejudice. After such a review, if the district court is convinced that no prejudice accrued to the defendant by virtue of the trial judge’s former prosecutorial relationship to the defendant, a denial of the requested relief on this ground is not erroneous.
However, in this case, the record indicates that no such review of the entire trial record was made by the district court. The district court denied Corbett’s application for habeas relief without holding an evidentiary hearing and without requesting from the clerk’s office of the Supreme Court of Kentucky a copy of the complete transcript from Corbett’s state trial. Because of this failure to completely satisfy itself that no prejudice accrued to defendant, once the strong possibility of prejudice was raised by the triggering circumstances, I am of the opinion that the district court’s denial of petitioner’s application, without more, was erroneous.
I would remand for a careful view of the record and an explicit determination on the issue of prejudice to the defendant’s right to a fair trial.