ON REHEARING
The State of Oklahoma, through the Attorney General, Jan Eric Cartwright, has filed a Petition for Rehearing and Suggestion for Rehearing En Banc. The two points which are emphasized in the motion are first, that the state court remedies had not been exhausted. The second point is that the federal trial court erred in excluding the admissions and confessions of defendant at the habeas corpus hearing.
We requested the response to the petition for rehearing from counsel for the petitioner, and the matter stands submitted.
I.
The emphasis here is placed upon the fact that the Oklahoma Court of Criminal Appeals rendered a decision in Edwards v. State, 591 P.2d 313 (Okl.Cr.1979), in which it carved out a new state remedy in the Oklahoma courts for petitioners who were claiming entitlement to the retroactive application of a denial of equal protection in juvenile transfers to adult courts. The contention is that in such circumstances the petitioner must re-exhaust state remedies.
The Edwards decision was rendered February 14, 1979. For the first time Oklahoma gave recognition to age discrimination contained in the Oklahoma statute. The opinion condemned the practice of treating males over the age of 16 years as adults and subject to adult sanctions and procedures. Females between the age of 16 and 18 years were treated as juveniles unless they were certified for trial as adults. Thus, the preEdwards rule was that males between the ages of 16 and 18 could be tried as adults without certification hearings. Females between 16 and 18 were triable as adults, but only if they were certified following a certification hearing. The Edwards court held that this was unconstitutionally discriminatory, in that it was in violation of the equal protection clause of the Fourteenth Amendment and discriminated against males. The court further held that in proceedings to determine whether retroactive relief could be granted an individual who, during the period between age 16 and 18, was transferred to adult court without certification, could obtain an order in state court overturning his conviction only if a finding was made that the individual would not have been certified if a certification hearing had been held. If such an individual could *1137present such a reason and the state could not establish that the individual would have been certified, then the district court could grant appropriate relief. The remedy itself was narrow but it did wipe out the Oklahoma ruling in Dean v. Crisp, 536 P.2d 961 (Okl.Cr.1975). There the Oklahoma court had held that the effect of several federal court rulings condemning the discriminatory procedure was merely to resurrect an early statute which treated both boys and girls under the age of 16 as juveniles, while those beyond the age of 16 were adults. Thus, it denied juvenile status to all children who were above the age of 16 years. Edwards overruled Dean v. Crisp, supra.
Our decisions in Lamb v. Brown, 456 F.2d 18, and Radcliff v. Anderson, 509 F.2d 1093, preceded the Oklahoma decision in Dean v. Crisp. Bromley v. Crisp, 561 F.2d 1351, was subsequent to Dean v. Crisp. All of the mentioned decisions recognized the discrimination which the Oklahoma courts were practicing. It was not until Edwards overruled Dean v. Crisp that there was a recognizable change. It was during the reign of Dean v. Crisp that the present habeas corpus proceedings came before the United States District Court for the Eastern District of Oklahoma. Following a preliminary hearing, the then Judge, Joseph W. Morris, gave the petitioner 120 days from the date presented in which to secure a state court determination as to whether the petitioner would have been (in 1970) certified as an adult for state criminal prosecution. Judge Morris at that time stated that the state courts unquestionably are qualified because of their expertise and daily experience to make the decision as to whether adult certification should have occurred. However, on that occasion Judge Morris declared that if the state court determination was not submitted to his court within 120 days from the date, the writ would issue unless an extension of time was given. On June 27, 1978, the then Attorney General, Mr. Derryberry, reported to the court with a written notification of state court action, stating that the Attorney General’s office had referred the matter to the District Attorney of Oklahoma County for appropriate action, and that an application to set a hearing was filed by an Assistant District Attorney. Then, on May 23, 1978, the notification stated, the Honorable Harold Theus, presiding Criminal District Judge, entered an order stating that the District Court of Oklahoma County did not have jurisdiction to review the conviction.
The notification went on to say that pursuant to this court’s decision in Bromley v. Crisp, 561 F.2d 1351 (10th Cir. 1977), the State (of Oklahoma) was requesting the United States District Court to conduct a hearing to determine whether or not the petitioner would have been certified to stand trial as an adult. The basic impediment at that time was that the Oklahoma decisions refused to recognize the constitutional violation which resulted from the discrimination.
The Oklahoma Attorney General now argues that the federal courts failed to take into account the strong public interest in certification which the State of Oklahoma had. This is subject to question, but one thing which was plain was that no remedy was available in Oklahoma courts until Edwards was handed down in 1979. Thus, habeas corpus petitions were futile efforts until Edwards.
On November 30, 1978, United States District Judge H. Dale Cook, sitting in the Eastern District of Oklahoma, entered an order which recited that acting on the authority of Bromley v. Crisp, 561 F.2d 1351, cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 499, 120 days had been granted for determination by the state court as to whether petitioner would have been certified as an adult for other state prosecution. Judge Cook noted that the 120 days for submission of a state court determination had expired and the Oklahoma court had not decided the issue. Accordingly, respondent was ordered to show cause within 20 days why the writ should not be issued forthwith.
The Oklahoma Attorney General responded that in view of the statement of the District Court of Oklahoma County (which *1138rejected the submission), the State of Oklahoma could not entertain the case because of a lack of jurisdiction. The Attorney General continued: “It is submitted that only the defendant in a criminal action may petition the state district court for a review of the state court conviction. Thus, the failure of petitioner to invoke the jurisdiction of the district court and obtain a state court ruling as to whether he would have been certified should not preclude the State of Oklahoma from petitioning this court (the federal court) for a hearing to be conducted pursuant to the guidelines of Bromley v. Crisp, * * The response continued: “As reflected in Bromley, supra, in note 6 at page 1356, the federal district court may have the hearing and make a ruling as to whether or not the petitioner would have been certified for trial as an adult if the state court fails to make such a ruling.” The Attorney General suggested that the federal court should conduct the hearing to determine whether or not the petitioner would have been certified for trial as an adult.
This is not the situation, as suggested in the motion for rehearing, that an unauthorized assistant attorney general expressed satisfaction in having the federal court decide the issue. Assistants act on behalf of the Attorney General. The Attorney General acknowledged that the State of Oklahoma was unable to invoke the jurisdiction of the state court. The Attorney General stated that the federal courts should determine the crucial issue whether, had it been considered ten years before, a certification to adult court would have issued.
Subsequent to the proceedings that are described above the decision of the Oklahoma Court of Criminal Appeals in Edwards v. State was handed down. Our decision in Bromley v. Crisp, supra, had recognized that in then-pending habeas cases the federal district court should withhold judgment for a reasonable time to allow the determination to be made in the state courts. If the state obtained a determination that certification would have occurred in the Oklahoma courts, federal district courts should deny the writ; if the state court found otherwise, the writ should issue. 561 F.2d at 1356, fn. 6. In the event no determination was ■ made in the state courts, however, the federal courts were advised to hold hearings “and make the ruling as to whether or not the court is clearly convinced that the petitioner would have been certified for trial as an adult * * Id. This was the setting when Judges Morris and Cook sought to obtain a ruling from the state district court, or failing that, to proceed with the case. No state hearing was either forthcoming or likely and so Judge Cook, with the consent and approval of the Oklahoma Attorney General, proceeded to hear the issue as best he could. The failure of the Attorney General to present a showing is not surprising.
Efforts had been made by the petitioner to submit this remedy in the state court. The petitioner had been denied relief in the Oklahoma district and appeals courts. The federal court submission was not likely to succeed, but the Oklahoma court showed no enthusiasm for having the case. In view of the happenings, it is difficult to see how the State of Oklahoma can now claim that as a result of the Edwards decision there must be further pursuit of a state court decision.
We are not saying that there was a waiver by the state. We are saying that the defendant made a bona fide and adequate effort to pursue and exhaust state remedies, and in view of the action taken by the state, it should not be heard to say that the proceedings were inadequate because of failure to re-exhaust his remedies.
We are aware that supervening changes in federal substantive law require that the state court be given an opportunity to consider petitioner’s contention in light of such changes. Drennon v. Hess, 642 F.2d 1204 (10th Cir. 1981); Franklin v. Conway, 546 F.2d 579 (4th Cir. 1976); James v. Copinger, 428 F.2d 235 (4th Cir. 1970).
Supervening changes in state procedural law have also been held to require that a federal court stay habeas corpus in order to allow re-exhaustion. Cf. Case v. Nebraska, 381 U.S. 336 (1965). See James v. Copinger, supra.
The state relies on Mabry v. Klimas, 448 U.S. 444, 100 S.Ct. 2755, 65 L.Ed.2d 897 *1139(1980). There petitioner had been convicted and sentenced under a recidivist statute. On appeal he successfully argued that some of his prior convictions should not have been admitted into evidence. The State Supreme Court reduced his sentence to the minimum had the inadmissible convictions been excluded. The petitioner there was not satisfied. He filed a habeas corpus in federal court, alleging that the entire sentencing was unconstitutional. The Supreme Court held that he had never exhausted his remedy as to the invalidity of the sentence as a whole. Thus, Mabry is not applicable here because no such problem exists. The state was given ample opportunity to consider and decide the case. Mabry is not a case of re-exhaustion.
The case of Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194,19 L.Ed.2d 41 (1967) bears a closer similarity than anything that is presented by the state. Petitioner in that case had requested a free transcript of the testimony of the key state witness rendered at the preliminary hearing. At every level he asserted his entitlement, through the trial and through post-conviction proceedings. The Second Circuit held that after the highest state court had ruled that denial of free transcripts to indigents was unconstitutional, petitioner might now receive relief in the state court, and that the federal petition ought to be dismissed and re-exhaustion should be required. The Supreme Court reversed, holding that repeated applications to state courts are not required in such circumstances. We say that the case here is governed by Roberts v. LaVallee. It is not seriously disputed that there was exhaustion in this case at the outset. The only point that the state now makes is that Edwards brought about a procedural change requiring re-exhaustion. We disagree in view of the peculiar circumstances presented. First Oklahoma refused to recognize the constitutional violation for many years. Meanwhile, the Attorney General, in effect, conceded that no action was to be expected from the Oklahoma courts and approved a hearing by the federal court. Further exhaustion was likely to prove futile. The Attorney General recognized this fact, as shown by his suggesting that the federal court hear the issue.
II.
The next contention is that the oral and written statements of the petitioner should have been received in evidence at the habeas hearing to determine whether a certification to the district court would have occurred ten years before. These statements constituted the only evidence offered by the state in the hearing before Judge Cook. The only witness on behalf of the state was the officer who conducted the investigation and who questioned the petitioner Mayabb. His testimony was devoted to the circumstances surrounding the taking of the statements, and an effort was made by the Assistant Attorney General to introduce all the oral statements that the accused had given, together with the written statement. Although the written statement was not actually tendered in evidence, the court rejected it, nevertheless, and did so on the ground that Mayabb had not had a lawyer and seemingly did not understand his rights, even though a Miranda warning was given by Sgt. Mullins, who conducted the questioning over a long period of time. The testimony from Mayabb was that he did not understand what the confession was; that he did not understand the wording, including the function of a lawyer, as he was unable to read. He also said that no one read the document to him. He testified that he was seventeen and was a seventh grade drop-out. He denied that he understood the words “right to counsel” nor did he understand the meaning of the word “incriminate”; he never had an attorney, nor had he ever talked to one. His mother testified that she was unable to read or write, and that his father was unable to read or write. She indicated that he did not know what he was signing.
The legal basis for the objection at this collateral hearing was the critical importance of the certification hearing to the juvenile. The conclusiveness of this hearing justified the objection to its admission and its exclusion, even though the issue at stake was not guilt or innocence. The authority relied on was Application of Gault, *1140387 U.S. 1, 55, 87 S.Ct. 1428, 1458, 18 L.Ed.2d 527; also J. T. P. v. State, 544 P.2d 1270, 1276.
Finally, the only other evidence tendered by the state was the card which purported to show the juvenile court record of the petitioner. The contents of the record were not revealed. The purpose was to show that the records existed.
The Assistant Attorney General, with commendable candor, acknowledged that the evidence bearing on the question of the admissibility of the statement was that the entries on the card could not be verified because the files were shown to have been destroyed. It was said by the Attorney General that “those two (the statement and the card) and I would have to agree with Mr. Gilbert, attorney for the petitioner are very scant ■ reasons for this court to find that Mr. Mayabb would have been certified as an adult, in light of the fact that there are certain due process guarantees which Mr. Mayabb is afforded when he is a juvenile.” An additional statement was made that not much evidence existed to show that he would have been certified; that the district court records had been destroyed, this case having been held ten years before.
It is not surprising that Judge Cook rejected the statements. The state was relying on an invalid confession and invalid admissions as its only evidence in seeking to establish that Mayabb would have been certified. Granted that confessions are generally offered to establish guilt, it does not follow that an invalid confession should be received to justify transfer to district court ten years afterward.
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A further point was tacked on by the Attorney General in the motion for rehearing which was not expressly raised at the hearing. That was that the defendant’s plea of guilty barred him from presenting a collateral attack upon the conviction. This has been discussed in the opinion. It is rendered inadequate by the fact there was not a counseled, intelligent, deliberate understanding waiver of his right to appeal such as to justify the withholding of federal habeas corpus relief. Nor is this a case in which there has been deliberate by-pass of the orderly procedure of state courts, whereby the petitioner - has forfeited his state court remedies. Cf. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Indeed, it is a far cry from anything that faintly resembles any manipulation by the petitioner. Although, as pointed out in the opinion, the state asserts that petitioner had the assistance of counsel in connection with his plea of guilty, the record fails to support this. See Meena v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), including the footnotes on pages 62 and 63, and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).
We do not find fault with the Attorney General’s motion for rehearing because of the fact that it resembles a brief more than a petition for rehearing, for it does make as strong a showing as can be made. However, it does not provide a basis for granting a rehearing.
We, therefore, determine that it should be, and it is hereby, denied.