concurring in part and dissenting in part:
I disagree with the majority’s interpretation of Luker v. Koch, 176 Colo. 75, 489 P.2d 191 (1971), and with its adoption of a new standard for determining an individual’s mental competence in an extradition proceeding, and therefore respectfully dissent to sections III A and B of the majority opinion.
As pointed out by the majority, the issues reviewable in habeas corpus proceedings in which extradition is challenged are very narrow. The asylum state is not responsible for determining the guilt or innocence of the alleged fugitive in extradition proceedings. The issue of mental competence is one which may be properly raised before the court in the demanding state; however, review of this issue is not constitutionally required in the asylum state. See Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913) (magistrate did not err in excluding evidence of insanity in extradition proceeding); Kellems v. Buchignani, 518 S.W.2d 788 (Ky.1974) (mental competence of fugitive not relevant in extradition proceedings).
Even though the constitution does not require review of the issue of mental competence in extradition proceedings, this court has stated in dicta that sanity might be relevant where the individual is so incompetent as to be totally unable to assist his counsel. Luker, 176 Colo, at 81, 489 P.2d at 193. I agree with the standard stated in Luker. This is the standard applied by the trial court in the present case; thus, the trial court did not err.
I disagree with the majority’s statement that Luker “properly understood” does not adopt a standard at odds with the standard applied in Kostic v. Smedley, 522 P.2d 535 (Alaska 1974). In Kostic the court adopted the standard used for determining whether an accused is competent to stand trial as the standard in extradition proceedings. Kostic, 522 P.2d at 538. This standard provides that the individual must have the present ability to consult with his attorney with a reasonable degree of rational understanding, and have a rational as well as factual understanding pf the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam).
In my view, the degree of mental competence necessary in order for a person to participate in an extradition proceeding is far less than is required in a trial on the merits because of the limited issues that are considered in such a proceeding. The Kostic standard would encourage alleged fugitives to raise the issue of mental competence in extradition proceedings, thus causing further delay in extradition. Delay many times adversely affects the trial by causing loss of evidence. I see no reason to encourage delay by adopting the Kostic standard since the individual’s mental competence may be raised in the demanding state before or at the time of trial. In a habeas corpus proceeding, the court should test the issue of mental competence by determining whether the individual is so *796incompetent as to be totally unable to assist his counsel. This standard is sufficient to protect the rights of the individual in light of the limited issues for which he will be called upon to assist his counsel.
Thus, I would affirm the district court’s order discharging the writ of habeas corpus.