dissenting:
I respectfully dissent. The majority’so-pinion as an abstract statement of the law is correct but it ignores facts that make its specific application wrong in this ease. The granting of a continuance lies within the trial judge’s discretion. Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). However, “discretion can be abused, and in an unusual case the denial of a continuance may be so arbitrary and so fundamentally unfair as to invoke the Constitution.” Shirley v. North Carolina, 528 F.2d 819, 822 (4th Cir.1975). This is just such a case. A review of the record shows that a glaring injustice has been done.
The record has already been well-summarized, but a few points deserve highlight. From the time Sampley was first tried in October 1981 until his original trial counsel withdrew in February 1982 — a period of almost four months — the case was more or less ping-ponged on the court’s docket, being continued rather routinely at the State’s request. The following two continuances, after Sampley’s counsel withdrew, were demanded as much by the State as by the defendant. Thus, up until March 1, 1982, the State either initiated or jointly participated in the trial’s delay. Not until March 1 did Sampley alone seek a continuance, and at that time he informed the trial judge that he had retained counsel but that his counsel would not be available until the next day.1 After perfunctory questioning, *617the trial judge simply responded that the case was “almost a year old” and thus would proceed that afternoon as scheduled. Sampley was informed that if he wanted an attorney, “[tjhere were many in the courthouse; there are lots of them in Wilmington and, I guess, throughout New Hanover County.” Sampley proceeded pro se and was convicted.
While there may be circumstances that would justify a trial judge in forcing a defendant to trial the day before his counsel was available, such a determination would require evidentiary findings against the defendant: that he had in fact had a “fair opportunity to secure counsel of his choice” but had unduly delayed. The majority admits that these determinations are “inevitably fact-specific”. Majority Opinion at 613.
If the trial judge had conducted such an evidentiary hearing, then I might be inclined, like the majority, to defer to the State’s factual finding pursuant to 28 U.S.C. § 2254. But, in this case, the trial judge’s findings were conclusory and have all the earmarks of a judicial gloss to cover the hazards of an appellate crucible.2 *618Thus, not only should his determination be afforded no deference, but his summary manner of proceeding should be viewed as even more conclusive evidence of his abuse of discretion.
The trial judge here made no effort to ascertain whether or not Sampley’s explanation for failing to retain counsel was correct. Nor did the judge attempt to determine when Sampley and his newly retained counsel would be available and how much this delay would in fact harm the State. For all we know, Sampley’s counsel might have been prepared to go to trial later that week and the witnesses subpoenaed by the State could have appeared then. The judge’s suggestion that there were many attorneys available in the area for a trial that afternoon begs the issue, because it takes time to prepare where there are a number of witnesses, a prior trial transcript, and other similar issues to investigate.
In order to affirm the district court, one must gloss over all of these facts. Combined they form a picture of unseemly haste, a “myopic insistence upon expeditiousness,” where the defendant is unnecessarily brought to trial in defiance of his constitutional right to counsel. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964). For these reasons, I would reverse the district court and remand the case to the district judge, with instructions to issue the writ directing the State of North Carolina to retry Sampley within 90 days or else dismiss the charges against him.
. The following colloquy occurred between the court, Mr. Carriker, the prosecutor, and Sampley:
MR. CARRIKER: Ted Sampley; would you step around?
COURT: Mr. Sampley, do you have an attorney? Just a moment; stand back there. You are not allowed to approach the Bench; I know you did not know. Do you have an attorney?
MR. SAMPLEY: No, Your Honor.
COURT: Why do you not have an attorney?
MR. SAMPLEY: The party that I talked to, is not available until after 1 March. He could not make himself available — it is Mr. Gillespie out of Legal Services, and he finishes up today. It is just an odd occurrence. I was scheduled to come to trial the same day that he — I talked to him almost two weeks ago.
COURT: May I see the file?
MR. CARRIKER: Yes, sir.
(District Attorney passes file to the Court.)
COURT: Has this case been tried before, Mr. District Attorney, and mistrialed?
MR. CARRIKER: Yes, Your Honor.
COURT: Did you have an attorney at that time?
MR. SAMPLEY: Yes, sir.
COURT: Was that October of last year? The 23rd day of October, 1981?
MR. SAMPLEY: Yes, sir.
COURT: Where is that attorney?
MR. SAMPLEY: Mr. Larrick.
MR. CARRIKER: He filed a Motion and appeared in Court in January. I think it was in January that he appeared in Court to withdraw at that time. The case was continued until two weeks ago and set for trial at that time.
COURT: Do you plan to try this case this week?
MR. CARRIKER: I planned to try it the first Jury Trial, Your Honor.
COURT: I see nothing in the file, Mr. Sampley, to indicate to the Court that the case for any reason, should be continued. The case is almost a year old at this time. It appears that you do not have an attorney. What his reason was for withdrawing I do not know. But the case is *617set for trial, and I would suggest, that if you want an attorney to represent you, that you get one quickly.
MR. SAMPLEY: In that case, Your Honor— may I speak?
COURT: Yes,sir.
MR. SAMPLEY: I will represent myself. I am neither feeble, ignorant or illiterate.
COURT: Do you understand that you have the right to have an attorney represent you in the trial of this case?
MR. SAMPLEY: The one that I have chosen, is unavailable right now.
COURT: There are many, many more in the County of New Hanover.
MR. SAMPLEY: May I speak, truthfully?
COURT: Well, it is according to what you are going to say.
MR. SAMPLEY: Okay. The attorneys that I approached, Your Honor, consider the case of a political nature, and the price they have put on it is much higher than I can afford. And the one that I have chosen, has — I have spent about seven thousand dollars on this — and the one I have chosen, I can handle it by paying it out of my business. So that is a problem.
COURT: I assume, from what you say, you plan to call this case at two o’clock?
MR. CARRIKER: That is what I had planned to do, Your Honor.
COURT: The case will be ready for trial at two o’clock. If you want to represent yourself, you may do so. If you want an attorney, there are many of them, here, in the courtroom, at the present time. There are many in the courthouse; there are lots of them in Wilmington and, I guess, throughout New Hanover County. The case will be tried at two o’clock.
. After the case was continued until 2:05 p.m., the defendant’s new counsel, Mr. Gillespie, specially appeared and moved for a continuance, which was denied. He apparently specially reappeared around 5:00 p.m. and renewed the motion. In denying his renewed motion, the court made these specific findings:
COURT: Let the record show that the Court denies the Motion of the attorney, Mr. Gillespie, for continuance and finds the following facts:
That on or about the 8th day of June, 1981, this defendant was charged with the three charges for which he stands on trial at this time; that the defendant had an attorney, who represented him at the District Court, in these three cases ... three cases and four charges; that the defendant had a different attorney that represented him in the Superior Court in the trial of this matter, and in October of 1981, that attorney in representing the defendant, saw a hung jury, which necessitated the declaring of a mistrial by the Judge then trying the case.
That the case has been set for trial since that date and continued, at the request of the defendant, on at least three occasions since the mistrial was declared; that no motion by the attorney, Mr. Gillespie, has been filed prior to this date, and that the attorney, Mr. Gillespie, did at 2 p.m. on this date, make an oral motion to the Court, that the case be continued; that the Court informed counsel that the matter was for trial and would be tried at 2 p.m.; that on this very morning the Court informed the defendant upon his oral motion for a continuance that for reasons set forth above, the matter would not be continued and would be tried at 2 p.m. this date.
That this case came on for trial at 2 p.m. on this date and is in the process of being tried, at this time. The Court further finds that it would create a hardship and inconvenience for the State of North Carolina, in that those persons who are witnesses for the State of North Carolina in these cases ... one being a Superior Court Judge, The Honorable Robert D. Rouse; one being a Court Reporter, this week holding Court in Pender County; another being the Honorable Jane Eason, who is a Magistrate here, in New Hanover County, the other being police officers involved in this case.
That the Court finds as a fact that it would be burdensome and unfair to the State of North Carolina to grant the continuance and, espe*618cially, to grant a continuance as filed by the defendant at five minutes past five, on this date, the case having begun shortly after 2 p.m. this date; the Court concludes as a matter of law that the request for a continuance is both untimely and, further, a detriment to the State of North Carolina if granted, and that more than
ample time has been afforded to this defendant, prior to the call of the case for trial, and, further, that this attorney has been practicing law, accepting private cases only since this day has begun, March 1, 1982.
It is, therefore, ORDERED that the Motion of James B. Gillespie, Jr., Esq., is hereby denied.