dissenting:
With all respect, I am unable to concur in the majority opinion and judgment. I view the state court decision as either contrary to, or an unreasonable application of, Supreme Court law, or both, as that law is set forth in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). To illustrate why, I set forth the pertinent facts from the state court proceedings.
At Baker’s arraignment, the state judge announced to several defendants a list of rights they enjoyed. No mention was made of the right to counsel. Baker then was asked to plead, and he pleaded guilty to driving without a valid license, but not guilty of driving while intoxicated and obstructing an officer. He stated that he would like a jury. The following exchange is the entire discussion of counsel:
Judge: And what do you anticipate doing with regard to counsel?
Baker: I’ll get a lawyer.
Judge: Ok.
Baker: If not, I’ll defend myself.
The arraignment ended. As the majority indicates, Baker was not prejudiced directly at the arraignment, because he pleaded guilty only to a charge that he has never contested. The total lack of advice regarding a right to counsel had a continuing effect, however, for it was never properly remedied prior to or during trial.
At Baker’s pretrial hearing, Baker made clear that he was without funds, but he was not adequately advised of his right to appointed counsel. Here is the entire exchange at that hearing:
Judge: Okay, Mr. Baker, I take it that nothing has been resolved here. I again *1113would advise you that you have very serious charges and you’re ill advised to try to represent yourself on them and that you’re certainly not equipped to properly handle the jury trial on these charges, you would not know the proper objections to make or how to preserve the record for any appeal and I’m urging you to hire an attorney to represent you in this matter.
Baker: I wish I could, if I had the money.
Judge: Well, the money of being convicted when, perhaps you wouldn’t be convicted, or not knowing your options, um, could cost you a heck of a lot more than an attorney costs you, so my advice to you is to hire an attorney. You’re not equipped to handle a jury trial. You can do it if you choose, but I’m just telling you that’s [sic] it’s not a very smart move for you to make.
Baker: I know. If you want to appoint me a public defender.1
Judge: Pound wise and penny poor, or however that goes, the other way around.
Prosecutor: I don’t know.
Baker: Yeah, well, ...
Judge: You’re better off to spend the money and cover yourself.
Baker: I don’t have the money to spend.
Judge: Well, you’re entitled to a court appointed attorney ...
Baker: Well then ...
Judge: ... if you qualify. If you don’t qualify, then you have money to spend. Baker: Whatever it comes down to, I’ll be here in Court and I’ll, if I have to represent myself I guess I’ll have to do it.
This colloquy was succeeded by a discussion of the fact that Baker lacked funds to pay the $150 fíne imposed on the count to which he pleaded guilty; the judge advised Baker to see the clerk and set up a payment schedule.
The trial date arrived, and Baker, not surprisingly, had secured no counsel. At the inception of trial, the following exchange occurred:
Judge: I just want to confirm on the record that you have previously been advised of your right to counsel. Is that correct?
Baker: Yes.
Judge: And you understand those rights at this time?
Baker: Yes.
Judge: And at this time it’s your own election to appear without a counsel, is that correct?
Baker: Yes.
The trial then commenced.
Apparently, Baker did approach the court clerk at one time and sought to have an attorney appointed. There were conflicting assertions concerning whether he was told he was unqualified, was told he was too late, or was given forms. Regardless of that question, Baker’s court proceedings do not meet the standards set by the Supreme Court for advice to the right of counsel and knowing and intelligent waiver of counsel.
“If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.” Johnson v. Zerbst, 304 U.S. at 468, 58 S.Ct. 1019. The transcripts quoted above indicate that, at the very least, Baker was uncertain about his right to secure appointed counsel. He appeared to accept the fact that, because he did not have money, he would have to represent himself. The judge did not clearly and unequivocally advise him to the contrary, as he had a duty to do.
*1114To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.
Von Moltke, 332 U.S. at 723-24, 68 S.Ct. 316 (footnote omitted). Certainly the trial judge’s perfunctory questions seeking an assurance from Baker that he had been advised of his right to counsel do not begin to meet this standard. There was never a “penetrating and comprehensive examination” of the circumstances of Baker’s waiver of counsel; there was virtually no examination at all.
Baker ended up representing himself, as was his right under Faretta. But his waiver of the right to counsel and his election to represent himself had to be made “knowingly and intelligently.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525. In electing to represent himself, if election it was, Baker was certainly not “voluntarily exercising his informed free will.” Id. Baker made it distressingly clear that he was going to represent himself because he had no funds. His right to appointed counsel was never adequately explained to him. Baker’s trial simply did not meet the standards for waiver of counsel established by the Supreme Court. I would therefore reverse the district court’s judgment and remand with instructions to issue the writ.
. The underlined phrase was not in the state transcript; it was replaced by "unintelligible." The magistrate judge found, however, that the tape of the proceedings demonstrates that Baker made the reference to appointed counsel. The district court did not take issue with that finding.