The opinion
RONEY, Senior Circuit Judge,
dissenting:
I respectfully dissent. I would affirm for the reasons set forth in the magistrate’s recommendation, which was adopted by the district court.
O.P. Hollis was convicted in 1959. He was paroled in March 1970, again in May 1973, and for a third time in May 1977. Parole was revoked each time, and most recently in June 1978. He did not file a federal petition for writ of habeas corpus until 1981.
By that time, none of the key players in that 1959 trial could recall it clearly. The presiding judge remembered nothing about the case. The prosecution witnesses were all either quite elderly or deceased. Defense counsel had long since discarded his notes and could no longer remember much about the case, including why he did or did not do certain things in his client’s defense. No transcript had ever been prepared and the state no longer had any records from which a transcript could be made. Indeed, the only records produced at the evidentia-ry hearing were copies of the docket sheet, arrest warrant, indictment, and jury list.
Rule 9(a) of the Rules Governing Section 2254 Cases was specifically designed to apply to situations such as this where a lengthy pre-filing delay- prejudices the Government’s ability to respond to the allegations. The rule provides:
A petition may be dismissed if it appears that the state ... has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.
The petitioner has not alleged facts which would permit the application of the exception in this rule. There is no evidence in the record to support the defendant’s allegations, it being necessary to rest on presumptions and speculation to reach a favorable result for defendant. See Henson v. Estelle, 641 F.2d 250, 253 (5th Cir. Unit A March 1981) (habeas relief may not be granted on assumptions). At this time, it is simply impossible for the state to show that the strength of its 1959 case against petitioner precludes a finding of prejudice from the procedural default.
I would affirm the district court’s judgment.