dissenting in part:
I agree with the majority in reversing the denial of Armant’s petition. I write separately, however, because the majority disregards Ninth Circuit precedent as to the proper procedure on remand in this case. Moreover, I disagree with the majority’s analysis of the “pro se request” and “request for continuance” as two distinct and unrelated issues. On the facts of this case, we cannot ignore that the two requests were related.
Armant's only arguably unequivocal pro se request was made on the day that trial was originally scheduled and was conditioned on securing a three weeks continuance. Ninth Circuit precedent establishes that “a motion to proceed pro se is timely made if before the jury is empaneled, unless it is shown to be a tactic to secure delay.” Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir.1982). Fritz explains in detail the proper analysis of the timeliness of pro se requests that result in delay:
Delay per se is not a sufficient ground for denying a defendant’s constitutional right of self-representation. Any motion to proceed pro se that is made on the morning of trial is likely to cause delay; a defendant may nonetheless have bona fide reasons for not asserting his right until that time, and he may not be deprived of that right absent an affirmative showing of purpose to secure delay.
In determining whether a defendant’s request to defend himself is a tactic to secure delay, the court may, of course, consider the effect of delay. A showing that a continuance would be required and that the resulting delay would prejudice the prosecution may be evidence of a defendant’s dilatory intent. In this case, for example, where Fritz’s pre-trial conduct had already caused substantial delay, a showing that his motion included a request for a continuance would be strong evidence of a purpose to delay. The inquiry, however, does not stop there. The court must also examine the events preceding the motion, to determine whether they are consistent with a good faith assertion of the Faretta right and whether the defendant could reasonably be expected to have made the motion at an earlier time.
Id. at 784-85 (Emphasis in original; citation omitted).
In Fritz, the district court denied Fritz’s petition for habeas corpus without a hearing on two grounds: first, because it found that his pro se motion in the state court had been untimely, and second, because it found that the state court record amply *559supported a finding of untimeliness. We reversed, finding that both the district court, id., and the state trial and appellate courts, id. at 785-86, had applied an incorrect rule of law as to timeliness. Because they misconceived the legal standard, neither court had made the proper inquiry into whether Fritz’s motion was a delaying tactic. Thus the record was not adequately developed on that crucial factual issue. We held that the correct procedure in such a case was to remand to the district court for an evidentiary hearing “to determine whether his motion to proceed pro se was made as a tactic to delay the start of trial.” Id. at 786.
In this case, as in Fritz, Armant made his pro se motion and continuance request immediately before trial was scheduled to start. I find it impossible to tell from the transcript whether the court’s denial of that request (or requests) was a grant to proceed pro se but denial of a continuance, or a denial of the pro se request because it was conditioned upon a three week delay. What is crystal clear is that the court did not want to delay the trial:
THE COURT:
Well, the request of the defendant for a continuance of the day of trial to represent himself in pro per is denied. It’s not a timely-made request. I’m not going to continue this matter for three weeks.
If the judge’s ruling was a denial of the pro se request because it was conditioned upon delay, then the court (and the state appellate courts) should have inquired into whether the motion was made as a delay tactic, or merely had a delay effect. Neither court did so, and thus on this question “the material facts were not adequately developed at the State court hearing.” 28 U.S.C. § 2254(d)(3) (1982). Armant is therefore entitled, under Fritz, to an evi-dentiary hearing in the district court on this question. If the district court, applying the principles set forth in Fritz, finds that the pro se motion was not a delay tactic, it should then issue an appropriate writ for the reasons well set forth in the majority opinion. Because there has been no record yet developed as to delay purposes, however, I conclude that we are bound by Fritz to remand to the district court for a hearing rather than ordering the district court to issue the writ forthwith.