dissenting:
I join in the grant of Dooley’s motion to delete his double jeopardy claim before this court. I also join in Part II of the opinion of the court, which holds that Dooley’s counsel was not ineffective for failing to request an evidentiary hearing on the question of Dooley’s competence to stand trial or to plead guilty.
I disagree, however, that on this record it is clear that Dooley’s attorney Campbell was not ineffective for failing to request that Ferguson be disqualified as the prosecutor against Dooley. In 1974, Ferguson, an assistant public defender, represented Dooley on an arson charge. There is no question that that fire is distinct from the ones Dooley pled guilty to in 1977. During the course of the 1974 trial, however, the district attorney attempted to introduce evidence to show that Dooley was a suspect in other fires for which he was not charged, namely the Floch and Dunn fires. After a jury trial, Dooley was found not guilty. Although Ferguson has testified that he did not discuss these other fires with him, Dooley insists otherwise. In 1977, Dooley was again charged with arson and during two interviews conducted by then District Attorney Ferguson made several incriminating statements about other fires, including the Floch and Dunn fires. Based on those *893interviews, Dooley was charged with six additional counts of arson.
Our first inquiry is whether Campbell’s failure to request Ferguson’s disqualification was reasonable under the circumstances. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Clearly, during his prior representation of Dooley, Ferguson “might have acquired” information about the exact fires that were the subject of the prosecution in which Ferguson participated as District Attorney. See Realco Services, Inc. v. Holt, 479 F.Supp. 867, 871 (E.D.Pa.1979) (explaining American Roller Co. v. Budinger, 513 F.2d 982, 984 (3d Cir.1975)). We need not resolve the dispute as to whether Dooley and Ferguson discussed the Floch and Dunn fires in 1974 because surely “they ought to have talked about” or it “would not have been unusual” for Ferguson to talk to Dooley about such possible incriminating evidence of other crimes. See Realceo Services, Inc. v. Holt, 479 F.Supp. at 871-72. Moreover, we need not find that Ferguson actually used Dooley’s confidence to his disadvantage. As we stated in Budinger, an attorney should disqualify himself if there “ ‘may be the appearance of a possible violation of confidences’ even though this may not be true in fact.” American Roller Co. v. Budinger, 513 F.2d at 984 (quoting ABA Comm, on Ethics and Professional Responsibility, Informal Op. 885 (1965)).
Thus, because Ferguson under these circumstances should have recused himself in Dooley’s prosecution, it would have been reasonable for Campbell to request that Ferguson be disqualified if Campbell knew or should have known of Ferguson’s prior representation of Dooley. The record, however, is unclear as to whether Campbell knew that Ferguson had once represented Dooley and whether Campbell knew that the evidentiary question in Dooley’s 1974 trial involved the Floch and Dunn fires.
The question of whether Campbell knew of Ferguson’s prior representation of Dooley is crucial to the issue of Campbell’s ineffectiveness and should be fully argued, not presumed. Although the majority claims that because this factual issue was never discussed, the record is devoid of a claim that Campbell knew, we can just as easily conclude that the record is devoid of any proof that Campbell did not know. The fact remains too that Dooley never had an evidentiary hearing in the district court to present properly such a claim.
Equally disturbing, however, is the majority finding it significant that Dooley did not make any allegation in his habeas corpus petition that Campbell knew of Ferguson's earlier representation. Dooley filed a pro se motion in the district court for appointment of counsel to assist him in preparing his habeas corpus petition, but that motion was denied on February 27, 1986. This denial was made despite the fact that it was clear that Dooley had difficulty filing and articulating his claims. The district court on January 22, 1986 by Memorandum Order had directed Dooley to amend his petition by specifying and particularizing his general allegations of “ineffective counsel and double jeopardy.” On March 10, 1986 Dooley, proceeding pro se, filed his amended petition containing the same conclusory claims but attached some 53 pages of documents which had been submitted to the state courts in the P.C. H.A. process and the following handwritten letter:
Dear Sir:
I am sening [sic] you the amentment [sic] you ask me to make on my petition [sic] + a copy of the Judge order from lower court for you can see what I am telling you is true + also a copy of the nut doctor retort [sic] on me.
Thank you
s/ John Dooley P3111
Whatever injustice was done by the district court’s denial of appointment of counsel at that juncture is compounded today by the majority’s faulting Dooley for his poor performance as a pro se litigant.
The majority holds that because the record is devoid of any evidence with respect to whether Campbell knew that Ferguson had been Dooley’s attorney on a previous arson charge, no federal evidentiary hearing was required. This is a curious *894conclusion in light of the majority’s recognition that, at no point during the hearing on Dooley’s second P.C.H.A. petition, was evidence sought regarding what Campbell knew about Ferguson’s prior representation of Dooley. Indeed, the majority states that “a fair characterization of the evidentiary hearing [at the state court level] as a whole is that the prime and central issue raised was Dooley’s competency to plead guilty.” See Maj. op. at 890.
Such a characterization compels the determination that a federal evidentiary hearing should have been held. The Supreme Court in Townsend v. Sain set forth the standards to determine when an evidentiary hearing in a habeas corpus case is necessary:
Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words, a federal evidentiary hearing is required unless the state court trier of fact has, after a full hearing, reliably found the relevant facts.
Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) (footnote omitted). The Townsend Court further explained:
A federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the factfinding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the trier of fact did not afford the habeas applicant a full and fair fact hearing.
Id. at 313, 83 S.Ct. at 757. The majority completely ignores the Townsend standards in its discussion. Obviously, a full and fair evidentiary hearing in the state court on the issue of Ferguson’s disqualification was not conducted. In fact, most of the circumstances held by the Townsend Court as mandating a federal evidentiary hearing are present in the instant case: 1) the merits of the factual dispute were not resolved in the state hearing; 2) the state factual determination is not fairly supported by the record as a whole; 3) the material facts were not adequately developed at the state court hearing; and 4) the trier of fact did not afford the habeas applicant a full and fair fact hearing. Therefore, on the basis of the state court record, I would hold that the district court erred in not conducting an evidentiary hearing on this issue.
Lastly, the majority concludes that because Dooley did not claim that he would have refused to plead guilty if Ferguson had been asked to disqualify himself and had in fact done so, he has failed to meet the prejudice component of Strickland. On appeal, Dooley specifically claims, however, that had Ferguson been disqualified “certain incriminating statements as well as Dooley’s waiver of counsel [at the interviews] may not have occurred” (Dooley’s Brief at 23), thereby raising a reasonable probability that the result of the proceeding would have been different. This plainly meets the prejudice prong of Strickland. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The majority’s reliance in this case on Hill v. Lockhart with respect to the prejudice requirement of Strickland is misplaced. The majority seems to imply that Hill stands for the proposition that in order to trigger the need for an evidentiary hearing, prejudice could only have been shown if Dooley had claimed that he would not have pled guilty. Hill v. Lockhart, however, involved a habeas corpus petition which challenged a guilty plea based on ineffective assistance of counsel. See 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Specifically, the Hill petitioner claimed that his guilty plea was involuntary because his attorney had misinformed *895him about his correct parole eligibility date. Thus, because the guilty plea itself was at issue, the Supreme Court held that Hill, in not claiming that he would not have pled guilty if he had been properly advised by counsel, had failed to allege the sort of prejudice entitling him to an evidentiary hearing on the issue of effectiveness of counsel. See id. 106 S.Ct. at 370. Hill v. Lockhart does not hold, however, that in all ineffective assistance of counsel cases the petitioner, in order to demonstrate prejudice, must claim that he would not have pled guilty but for his counsel’s ineffectiveness.
Similarly, the majority’s further reliance on Justice White’s concurrence in Hill is equally misplaced, as the position espoused there is certainly not controlling. Justice White would have upheld the judgment on a different ground than the Hill majority, namely the petitioner’s failure to inform his counsel of his earlier convictions in view of the fact that the petitioner had signed a plea statement containing a space for prior convictions which had been filled in with a “0.” See id. at 371-72 (White, J., concurring). Justice White’s position obviously turns on the peculiar facts of the Hill case — the fact that the petitioner there apparently affirmatively represented to his attorney that he had no prior convictions. Although the majority in the instant appeal concludes, incredibly in my opinion, that Dooley’s habeas corpus petition suffers from the same deficiency as Hill’s because Dooley “failfed] to inform Campbell of Ferguson’s prior representation” (see maj. op. at 891), the record does not contain such a factual finding nor does it support such a finding. Based on the record, we do not know what Dooley did or did not tell Campbell. This is merely further support for the need of an evidentiary hearing in this case.
Because the state court did not adequately develop the factual issue of whether Campbell knew or should have known of Ferguson’s prior representation of Dooley, I would remand in order that an evidentiary hearing to resolve that question be held.