Opinion
No. 25483.
April 14, 1971. Rehearing Denied June 3, 1971.
Jack K. Weber, Deputy Atty. Gen. (appeared), William E. James, Asst. Atty. Gen., Evelle J. Younger, Atty. Gen., Los Angeles, Cal., for respondents-appellants.
William Bryant Mason, in pro. per.
Before CHAMBERS, BROWNING, and WRIGHT, Circuit Judges.
The district court granted a writ of habeas corpus on the ground that Petitioner did not effectively waive counsel in his state trial.
The district court made its determination without an evidentiary hearing and solely because the state court judge did not make adequate inquiries of petitioner before allowing him to reject the services of a public defender and represent himself.
In Hodge v. United States, 414 F.2d 1040 (9th Cir. 1969), and Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), we rejected the contention that under Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), an inadequate inquiry by the trial judge conclusively establishes absence of effective waiver. On the record in this case a hearing was required to determine whether petitioner knowingly and intelligently waived counsel. See Sessions v. Wilson, 372 F.2d 366, 369-370 (9th Cir. 1967).
Reversed and remanded.