Sampley appeals from the dismissal by the district court of his petition for habeas corpus in which he claimed that a state court's refusal to grant a continuance of his trial deprived him of his sixth amendment right to the effective assistance of counsel. We conclude that the district court properly determined that Sampley's sixth amendment right was not violated, and we therefore affirm.

* In June 1981, Sampley had an altercation with several police officers in the New Hanover County, North Carolina, courthouse following dismissal of a criminal case in which Sampley was a prosecution witness. As a result, he was arrested and charged under state law with simple assault, assault on a police officer, and resisting arrest. Represented by privately-retained counsel, Sampley was tried on those charges in October 1981. The trial ended in a mistrial because of a hung jury.

The case was then calendared for retrial in November 1981, but upon the state's motion it was continued until December 1981, on the basis that Sampley's retained counsel was involved in a murder trial. The case was then again twice continued on the state's motion, first until January 1982, then until February 1982, on the basis that an essential witness for the state was unavailable for both the December and January terms.

Following the continuance to the February 1982 term, Sampley published a paid newspaper advertisement criticizing the state prosecutor for delaying his retrial. Sampley's retained counsel had specifically advised him not to do this while the retrial was pending.

As a result of Sampley's refusal to follow his advice, his counsel sought and was allowed by the court to withdraw as counsel in early February 1982.

In consequence of counsel's withdrawal, the state moved for yet another continuance of two weeks duration to mid-February, on the stated basis of Sampley's need "to hire new counsel." This was allowed. Once again, when the mid-February trial date approached, both Sampley and the state moved separately for yet another continuance, on the stated basis in both motions that Sampley did not yet have counsel. These motions were allowed in mid-February with trial being then set for March 1, 1982, some two weeks away.

On the morning of March 1, 1982, Sampley appeared in court without counsel. Upon being asked by the trial judge if he was represented, he answered that he was not. Responding to further inquiry, he advised the court that he had engaged an attorney "almost two weeks ago," but that the attorney could not represent him until after March 1, when, by an "odd occurrence" the attorney's public employment with a legal service office would end. No motion for continuance from the March 1, trial date had been made by either Sampley or the new counsel until Sampley appeared in court on March 1.

Following Sampley's representation of the need for a continuance, the trial judge asked the state prosecutor if the state planned to try Sampley's case "this week." The prosecutor answered that he planned to try it as the first jury trial.

Thereupon the trial judge told Sampley that he saw nothing in the record to justify the requested continuance; that the case was set for trial; and that if Sampley wanted an attorney to represent him he should "get one quickly." To this Sampley responded that he would represent himself in view of the fact that counsel he had chosen was "unavailable right now." When the judge then suggested that there were "many, many more" attorneys in the county, Sampley asserted that because they considered his case to be "of a political nature" all the lawyers he had approached except the one he had employed wanted a higher fee than he could afford; that he had already spent "about seven thousand dollars on this."

Following reconfirmation by the prosecutor that he intended to call the case for trial at 2:00 p.m. that day, the trial judge told Sampley that it would be tried at that time, observing again that there were many lawyers near at hand who might represent him.

At 2:00 p.m., the attorney who Sampley said he had employed appeared "specially" with Sampley and moved for a continuance. He verified that Sampley had employed him earlier, that his freedom to engage in private practice had just commenced on March 1, that he was prepared to represent Sampley if given adequate time to prepare, but that he could not provide representation if the case were called for trial on March 1. The court denied counsel's motion, whereupon the case was called for trial and commenced with Sampley appearing pro se.

At the end of the day's proceedings, Sampley's putative counsel again appeared "specially" and formally renewed his motion for a continuance. The trial judge again denied the motion, on the basis of findings of fact entered into the record. After reciting the basic chronology of proceedings above outlined the judge found that to grant a continuance would "create a hardship and inconvenience for the State of North Carolina" in view of the fact that the witnesses who were appearing for the state (and who had presumably made their arrangements for appearance) included another state trial court judge, a court reporter presently working in another county, a local magistrate, and the police officers who had observed Sampley's conduct on which the charges were based. The court further concluded that "the request for a continuance is ... untimely," and that "more than ample time has been afforded to this defendant (Sampley)."

The trial then proceeded with Sampley conducting his own defense throughout. He was found guilty by the jury on all three charges, and was given an active sentence of 60-days imprisonment and placed on probation for five years. At his sentencing hearing, which occurred at the end of the March 1 trial week, he was represented by privately retained counsel.

Following exhaustion of available state remedies, Sampley filed this petition for habeas corpus in federal district court, claiming a denial of his sixth amendment right to the assistance of counsel by virtue of the state court's refusal to grant a continuance of his trial. The district court summarily denied the petition on a consideration of the habeas record, including relevant portions of the state court criminal proceedings.

This appeal followed.

The sixth amendment, while not providing an absolute right, guarantees a defendant a fair opportunity to secure counsel of his own choice to represent him at trial on criminal charges. Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58, 77 L.Ed.158 (1932). Among the ways this opportunity, hence the right, can be denied is by a court's refusal to continue a scheduled trial when the defendant appears on the scheduled date without counsel, or is forced to trial with unprepared counsel or with counsel not of his choice. But the right, as indicated, is only a qualified one, the opportunity guaranteed is only a "fair" one.

Obviously a defendant has no constitutional right to dictate the time, if ever, at which he is willing to be tried by simply showing up without counsel, or with allegedly unsatisfactory counsel, whenever his case is called for trial, see Ungar v. Sarafite, 376 U.S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964), or by objecting that counsel then retained or assigned is not presently "counsel of his choice," see Morris v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983).1 The limit of the right is necessarily found in the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of "assembling the witnesses, lawyers, and jurors at the same place at the same time," Morris v. Slappy, 461 U.S. at 11, 103 S.Ct. at 1616.

When a defendant does request a continuance on the basis, as here, that he does not have counsel to represent him, the court requested to grant the continuance must therefore make a judgment whether this results from the lack of a fair opportunity to secure counsel or rather from the defendant's unjustifiable failure to avail himself of an opportunity fairly given. In making this judgment, the court is necessarily entitled to take into account the countervailing state interest in proceeding on schedule.

Given the inevitably fact-specific conflicts between individual rights and state interests posed by such requests for continuances, trial courts must be accorded wide discretion in deciding whether to grant continuances, notwithstanding that constitutional rights may be implicated. Morris v. Slappy, 461 U.S. at 11, 103 S.Ct. at 1616; Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 849. Indeed, the constitutional right is probably best stated as a limit on trial court discretion: that discretion only exceeds its constitutional bounds when it is exercised to deny a continuance on the basis of an "unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay.' " Morris v. Slappy, 461 U.S. at 11-12, 103 S.Ct. at 1616-17 (quoting Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 849). Because a request for delay cannot be considered "justifiable" if it proceeds from a "transparent ploy for delay," Morris v. Slappy, 461 U.S. at 13, 103 S.Ct. at 1617, whether it is the one or the other is the critical constitutional issue posed by such a request.

In application of these general principles, it is settled only that "not every denial of a request for more time ... violates due process even if the [defendant] ... is compelled to defend without counsel," Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 849; though some such denials may, see, e.g., Patton v. North Carolina, 315 F.2d 643 (4th Cir.1963) (defendant forced to trial without counsel on day retained counsel allowed to withdraw).2III

We apply these constitutional principles in review of a district court's summary dismissal of a habeas corpus petition challenging, collaterally, a state trial court's discretionary denial of such a request for continuance. Our review is therefore subject to the constraints imposed upon federal collateral review of state court criminal proceedings by 28 U.S.C. Sec. 2254(d).

A preliminary question, therefore, is the extent to which the state court's ruling was based upon factual findings subject to the deference commanded for federal courts by Sec. 2254(d), and to what extent it was based upon conclusions of law subject to plenary federal review. As Miller v. Fenton, --- U.S. ----, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985), has recently emphasized, there is no "rule or principle that will unerringly distinguish a factual finding from a legal conclusion" for purposes of applying Sec. 2254(d).

Here the ultimate state court determination--the dispositive one under the constitutional principles above outlined--is that Sampley had been given a fair opportunity to secure counsel, so that the denial of continuance was warranted, given the countervailing state interest in proceeding with the duly calendared trial. While not of course put in those exact terms, the state court's formal findings that a continuance requested on the day of trial "would create a hardship and inconvenience for the State ... in that [its] witnesses [included] a Superior Court Judge ..., a Court Reporter ... a Magistrate ... [and] police officers," and that "more than ample time has been afforded to this defendant, prior to the call of this case for trial," are unmistakably to the effect that a fair opportunity to secure counsel--all that is guaranteed by the sixth amendment--had been provided.

Were we forced to decide the matter as dispositive of this appeal, our disposition would be to hold that this ultimate state court determination of "fair opportunity provided" is properly treated as a finding of fact, hence is subject to the deference commanded by Sec. 2254(d), albeit it is effectively dispositive of the sixth amendment claim. See Miller v. Fenton, --- U.S. at ----, 106 S. Ct. at 451 (citing Dayton Board of Education v. Brinkman, 443 U.S. 526, 534, 99 S. Ct. 2971, 2977, 61 L. Ed. 2d 720 (1979) ). Both as a matter of logical analysis and of proper allocation of judicial functions within the federal system, see Miller v. Fenton, --- U.S. at ----, 106 S. Ct. at 451, this seems an issue which state trial judges must be considered better "positioned" to decide than are federal judges sitting in collateral review. That is to say, it seems on both scores more like the issue of juror impartiality, treated as one of fact in Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984), than like the issue of voluntariness of a confession treated as one of mixed law and fact in Miller v. Fenton.

If this ultimate issue of "fair opportunity provided" be treated as one of fact, hence subject to the presumption of correctness under Sec. 2254(d), the district court was plainly correct in dismissing the habeas petition without an evidentiary hearing. There was no suggestion that any of the conditions for presuming correctness specified in Sec. 2254(d)(1)-(7) were not present, and the ultimate determination by the state court was fairly supported on the record of state court proceedings, considered as a whole, that was before the district court, under Sec. 2254(d)(8).

The basic subsidiary facts concerning the chronology of continuances at the behest of both the state and Sampley were undisputed. Critical in the chronology was the fact that two successive continuances following the withdrawal of Sampley's retained counsel had been allowed for the specific purpose of enabling him to employ other counsel. Also critical was the fact, conceded by Sampley, that between the time he employed new counsel until the case was called for trial at a date known by him for two weeks, neither Sampley nor newly employed counsel made any motion for further delay to accommodate the fact that new counsel could not act in private employment before the scheduled date of trial. This fact was not made known to the trial judge until the case was called. See Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 849 (propriety of state court ruling must be gauged in light of the reasons presented at the time delay is requested). All told, the bald fact is that Sampley, who had represented throughout an intention and ability to employ his own counsel, had failed for almost a full month to secure counsel that would be able to represent him when his case was finally called.

Also indisputable on the state record is the fact that more than ordinary inconvenience to the state would result from the last-minute continuance belatedly requested, because of the various state judicial officers who under the peculiar circumstances were required and were standing by as state witnesses. Further reason for denying continuance was the long delay in bringing Sampley to retrial. Some of the delay was concededly responsive to state motions for its own convenience, but others had been at the behest of Sampley and the state to accommodate Sampley's need to secure new counsel.

The only factual issue even potentially in dispute was whether Sampley had indeed been unable, despite reasonable effort, to secure new counsel able to represent him at the scheduled time. On this, Sampley's conclusory assertion that the "political" nature of his case made employment of counsel at affordable fees impossible was subject on its face to considerable doubt under the circumstances. Certainly the state trial judge's implicit rejection of this asserted justification for further delay is the type of credibility determination to which particular federal deference is owed under Sec. 2254(d). See Ungar v. Sarafite, 376 U.S. at 591, 84 S.Ct. at 850 (deference owed state trial court's rejection of defendant's proffered reason for requested delay).

Because the line between "fact" and "law" and "mixtures of fact and law" for Sec. 2254(d) purposes is concededly a queasy one, see Miller v. Fenton, --- U.S. at ----, 106 S. Ct. at 451 ("elusive"), we deem it prudent to say that were the ultimate state court determination here properly considered one of law or of mixed law and fact subject to plenary federal review, we would not decide this appeal differently. If the sixth amendment guarantee of a fair opportunity to secure counsel is properly considered a legal standard to be independently applied by federal courts, whether in direct or collateral review, we are satisfied that here such a standard is met on the undisputed facts of record in this habeas proceeding. As a matter of independent consideration of the facts as they necessarily appeared to the state judge at the time Sampley's case was called for trial, we cannot conclude that his denial of the requested delay was "an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay.' " Morris v. Slappy, 461 U.S. at 11-12, 103 S.Ct. at 1616. Rather we would conclude independently, as presumably did the district court,3 that the state court's refusal to grant the continuance did not abuse the constitutional limits of trial court discretion4 imposed by the sixth amendment.

AFFIRMED.

RICHARD L. WILLIAMS, District Judge, dissenting:

I respectfully dissent. The majority'sopinion as an abstract statement of the law is correct but it ignores facts that make its specific application wrong in this case. The granting of a continuance lies within the trial judge's discretion. Morris v. Slappy, 461 U.S. 1, 11, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983). However, "discretion can be abused, and in an unusual case the denial of a continuance may be so arbitrary and so fundamentally unfair as to invoke the Constitution." Shirley v. North Carolina, 528 F.2d 819, 822 (4th Cir.1975). This is just such a case. A review of the record shows that a glaring injustice has been done.

The record has already been well-summarized, but a few points deserve highlight. From the time Sampley was first tried in October 1981 until his original trial counsel withdrew in February 1982--a period of almost four months--the case was more or less ping-ponged on the court's docket, being continued rather routinely at the State's request. The following two continuances, after Sampley's counsel withdrew, were demanded as much by the State as by the defendant. Thus, up until March 1, 1982, the State either initiated or jointly participated in the trial's delay. Not until March 1 did Sampley alone seek a continuance, and at that time he informed the trial judge that he had retained counsel but that his counsel would not be available until the next day.1 After perfunctory questioning, the trial judge simply responded that the case was "almost a year old" and thus would proceed that afternoon as scheduled. Sampley was informed that if he wanted an attorney, "[t]here were many in the courthouse; there are lots of them in Wilmington and, I guess, throughout New Hanover County." Sampley proceeded pro se and was convicted.

While there may be circumstances that would justify a trial judge in forcing a defendant to trial the day before his counsel was available, such a determination would require evidentiary findings against the defendant: that he had in fact had a "fair opportunity to secure counsel of his choice" but had unduly delayed. The majority admits that these determinations are "inevitably fact-specific". Majority Opinion at 613.

If the trial judge had conducted such an evidentiary hearing, then I might be inclined, like the majority, to defer to the State's factual finding pursuant to 28 U.S.C. Sec. 2254. But, in this case, the trial judge's findings were conclusory and have all the earmarks of a judicial gloss to cover the hazards of an appellate crucible.2 Thus, not only should his determination be afforded no deference, but his summary manner of proceeding should be viewed as even more conclusive evidence of his abuse of discretion.

The trial judge here made no effort to ascertain whether or not Sampley's explanation for failing to retain counsel was correct. Nor did the judge attempt to determine when Sampley and his newly retained counsel would be available and how much this delay would in fact harm the State. For all we know, Sampley's counsel might have been prepared to go to trial later that week and the witnesses subpoenaed by the State could have appeared then. The judge's suggestion that there were many attorneys available in the area for a trial that afternoon begs the issue, because it takes time to prepare where there are a number of witnesses, a prior trial transcript, and other similar issues to investigate.

In order to affirm the district court, one must gloss over all of these facts. Combined they form a picture of unseemly haste, a "myopic insistence upon expeditiousness," where the defendant is unnecessarily brought to trial in defiance of his constitutional right to counsel. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849, 11 L. Ed. 2d 921 (1964). For these reasons, I would reverse the district court and remand the case to the district judge, with instructions to issue the writ directing the State of North Carolina to retry Sampley within 90 days or else dismiss the charges against him.