*2 аgreeing public de- by tion to allow [the HILL, and HATCH- Before KRAVITCH him to and representing continue fender] ETT, reasserting never his desire for sеlf- by trial. At representation until late in the PER CURIAM: it was discretion that time within thе appel- We must determine whether the judge public de- the triаl to allow [the corpus lant, petitioner, waived his a habеas to conclude the case. fender] right constitutional rеpresent to himself appeals now the district court’s Brown without the assistance of counsel in his state corpus of his 28 2254 habeas denial U.S.C. § court trial. We find no waiver and reverse. 1974 state convic- petition challenging his degree for second murder. Brоwn, con- 1974, was appellant, In the Wainwright, 617 in F.2d As noted Scott v. After degree second murder. victed of - denied, 99, (5th Cir.), 102 cert. U.S. self-represen- exhausted the issue of Brown -, (1980), 111 240, 101 S.Ct. 66 L.Ed.2d courts, the he filed tation in the state “the law in this even before Faretta circuit in 1977. present petition California, 422 95 45 S.Ct. U.S. federal evidentiary hearing, (1975), At an a criminal de 562 was that L.Ed.2d Brown, prior court found to to right district has a defend fendant constitutional trial, only defend- court-appointed publiс right told his himself and that the condi intelligent himself. waiv preferred reрresent upon knowing er that to tioned right Brown Additionally, corresрonding wrote er of the constitutional to judge several letters his desire Prior to represented by to be counsel.” trial, terms, attempted represent himself without the assistance in clear Brown self-repre right for request counsel. In view Brown’s assert this cоnstitutional in the defender filed record self-representation public only sentation. evidence had fact tending a Motiоn for Leave as Coun- to show that Brown to Withdraw wanting rep hearing At the in the federal district his mind about changed sel. by Brown’s court, testified that he himself is statement defender resent the state that he and these circumstanc advised trial defender. Under waiver, differеnces, we bridged es, a record silent as to Brown had their right not for the waived might appropriate it cannot find that Brown self- at that time. Brown’s judge to act on motion upon a “is presenсe only of the conditioned representation This conversation was out waiver of cor- intelligent Al- setting. knowing of Brown and in an informal right to responding repre- constitutional argument without оral on a date hereafter Scott, at 102. by sented counsеl.” to be fixed. The Clerk will specify brief- writing orally, both in ing filing schedule for thе of supplemental repre- to waive to be attemрted briefs.
sented
It is understandable that in his zeal to see that Brown was counsel,
represented by competent
Brown his to Faret- prior
Brown’s state trial occurred
ta. Scott is a 1980 case. Thus, easy it is judge’s pri-
understand mary concern in 1974 was Brown’s Joseph Simon, SIMON Jonnie H. Petitioners-Appellees, Scott, As in necessary it is not for us to v. reach Faret- questiоn retroactivity OF COMMISSIONER INTERNAL REV ta, since granted this circuit the right ENUE, Respondent-Aрpellant. self-representation long before Farettа. Mathis, Warner L. MATHIS and Hazel Accordingly, is entitled to habeas Petitioners-Appellees, remand, relief. On the federal district cоurt should allow the State Florida a v. reasonable time within which rе-try COMMISSIONER OF INTERNAL REV making Brown before the issuance of the ENUE, Respondent-Appellant. writ final. BEARD, Jr., M. John AND
REVERSED REMANDED. Petitioner-Appellee, ON PETITION FOR REHEARING AND PETITION FOR REHEARING OF INTERNAL COMMISSIONER REV EN BANC ENUE, Respondent-Appellant. (Opinion 13, 1980, Cir., November 337) 644 F.2d GODBOLD, Judge, Chief States Court of COLEMAN, AINSWORTH, CLARK, RONEY,. GEE, CHARLES Unit B TJO- FLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, JOHNSON, Jr., FRANK M.
GARZA, HENDERSON, REAVLEY, POL-
ITZ, HATCHETT, ANDERSON, RAN-
DALL, TATE, JOHNSON, D. SAM THOM- WILLIAMS,
AS A. CLARK and
BY THE COURT:
A member of the Court in active service
having requested poll the application
for rehearing en banc and a majority
judges in active service having voted in
favor of granting rehearing banc, en
IT IS ORDERED cause shall be
reheard the Court en bane on briefs