c29:No. 74-1400

McCREE, Circuit Judge
(dissenting).
Although the district court did not apply the test for effective representation that we adopted in Beasley when we rejected the “farce and mockery” standard, I do not believe a remand is required. The application of the farce and' mockery standard does not automatically require reversal if a claim of ineffective assistance of counsel is rejected. If the district court has conducted a full evidentiary hearing and has made findings of fact as it did here, this court can apply the proper test.
In the context of this case, the proper inquiry is whether defense counsel deprived appellant of a substantial defense by ineffectiveness or incompetence. Despite the perplexity of the magistrate, expressed rhetorically in his Report on Reference quoted in the majority opinion, the district court, after conducting an evidentiary hearing, found that when petitioner was advised that if he should be found guilty by reason of insanity he would be confined to an institution for the criminally insane, he insisted on going to trial without an examination by a private psychiatrist. The district court stated, “His counsel believed he was competent to make this decision as indeed he appears to have been.” This finding is not clearly erroneous, and it follows that the decision to go to trial without psychiatric testimony was not the consequence of ineffectiveness or incompetence.
The district court’s memorandum correctly decides the other issues presented and I would affirm.

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