Full opinion text
J. JOSEPH SMITH, Circuit Judge (with whom WATEEMAN, IEVING E. KAUFMAN, HAYS, ANDEESON and FEINBEEG, Circuit Judges, concur): I. United States ex rel. Ross v. McMann is an appeal from a dismissal without hearing of an application by a state prisoner for writ of habeas corpus in the District Court for the Eastern District of New York, Walter Bruchhausen, Judge. Eelator, confined in a New York State prison for a term of 45 years to life on conviction upon plea of guilty to murder in the second degree, petitioned the Supreme Court of the State of New York for Kings County for a writ of error coram nobis on the ground that his guilty plea was induced by coerced confessions. The writ was deniéd without a hearing, the decision affirmed without opinion by the Appellate Division, People v. Ross, 26 A.D.2d 773, 272 N.Y.S.2d 969 (2d Dept. 1966) and leave to appeal denied by the New York Court of Appeals. The District Court entertained the application for writ of habeas corpus, and dismissed the petition without a hearing on the ground that “a voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings against him,” relying on United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2 Cir. 1965), cert. denied 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966). In his complaint and supplemental affidavit Ross alleges that he pleaded guilty because his attorney had'refused to attempt to suppress a confession which had been illegally obtained from him and had warned him that if he risked a trial, the confession and other evidence against him would surely lead to his conviction for first degree murder and sentence to the electric chair. We hold that these allegations raise a sufficient question as to the voluntariness of the plea of guilty to require a hearing before the issue is determined. On the record before us, it appears that Ross has sufficiently raised his present claims in the state courts to satisfy the requirement of exhaustion of state remedies. On oral argument, however, it was represented that a second petition by Eoss for relief by writ of error coram nobis has been brought to and is pending in the state courts. If this is determined by the District Court to be the fact, that court may defer hearing in this matter pending final determination of the action in the state courts. And, if hearing is had on the issue in the state courts, the District Court may find further hearing before it unnecessary to its determination of the merits. We reverse and remand to the District Court for further proceedings not inconsistent with this opinion. This case raises the narrow question whether a District Court should apply the standards of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), in determining whether to hold an evidentiary hearing upon a habeas corpus petition where the petitioner is confined after a plea of guilty and is contending that the plea was not voluntary, because it was induced by the existence, or threatened use, of an allegedly coerced confession. It is clear, first of all, that a plea of guilty, even where the defendant is represented by counsel, is not an absolute bar to collateral attack upon a conviction. Waley v. Johnston, Warden, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942). Cf. Pennsylvania ex rel. Herman v. Claudy, Warden, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956). (In Herman, petitioner did not have benefit of counsel.) See also Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962): “A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack.” To paraphrase Harrison v. United States, 392 U.S. 219, 223, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), “The question is not whether the petitioner made a knowing decision to [plead] but why.” Nor is the mere existence of a coerced confession enough to invalidate a later guilty plea by a defendant represented by counsel. The question to be answered in any case involving a collateral attack on a conviction based upon a plea of guilty is usually expressed in terms of whether or not the plea was a “voluntary” act. [An “involuntary” plea of guilty is inconsistent with due process of law, see Waley v. Johnston, supra, 316 U.S. at 104, 62 S.Ct. 964, and thus invalid whether made in federal or state court.] And Townsend v. Sain, supra, 372 U.S. at 312-313, 83 S.Ct. 745, requires that where the petitioner in such a case has not received a “full and fair evidentiary hearing” in a state court as to the voluntariness of the plea, a hearing be held in the federal District Court. The question of when to hold a hearing has apparently been complicated in this Circuit, however, by confusion between the doctrine that an involuntary guilty plea may be collaterally attacked and the well-established doctrine that if the plea is voluntary, it is an absolute waiver of all non-jurisdictional defects in any prior stage of the proceedings against the defendant. Judge Weinfeld said in United States v. Colson, 230 F.Supp. 953, 955 (S.D.N.Y. 1964), “The determination of the ultimate question of whether the defendant, at the time he pled guilty, had the free will essential to a reasoned choice, rests upon probabilities and, of course, cannot be resolved with mathematical certainty. It involves an evaluation of psychological and other factors that may reasonably be calculated to influence the human mind. * * * [I] t is necessary to consider the plea of guilty against the totality of events and circumstances which preceded its entry.” The determination is difficult, but it is not necessarily rendered more difficult simply because a coerced confession or an illegal search and seizure is one of the factors which may be taken into account. In the case at bar, the court, relying on Glenn, found it unnecessary to make such a determination. This, we think, resulted from a too expansive reading of Glenn. The opinion in Glenn may be read either of two ways: (1) the allegation of a coerced confession, without more, is not sufficient to raise the issue of the voluntariness of a guilty plea; or (2) an unconstitutionally coerced confession is never relevant to the issue of the voluntariness of a guilty plea. The first, more narrow reading, seems to us to state the proper rule. But the second reading (the much more likely meaning of the opinion despite the use of the word “voluntary,” in view of the allegation that the plea was coerced by the existence of an involuntary confession) confuses the doctrine that an involuntary guilty plea may be collaterally attacked with the doctrine that if it is voluntary, a guilty plea waives prior defects in the proceedings against the defendant. The court relied on two cases in Glenn: United States ex rel. Swanson v. Reincke, 344 F.2d 260 (2 Cir.), cert. denied 382 U.S. 869, 86 S.Ct. 144, 15 L.Ed.2d 108, 1965 and United States ex rel. Boucher v. Reincke, 341 F.2d 977 (2 Cir. 1965). Neither of those cases holds that the waiver rule should operate to make an invasion of the defendant’s Constitutional rights irrelevant to the issue of the voluntariness of the guilty plea. In Swa/nson, this court affirmed the denial of relief in a habeas corpus proceeding challenging the constitutionality of the statute under which petitioner had been convicted, where a hearing had been held below. There is language in the court’s opinion refusing to rest affirmance on the ground that a plea of guilty should bar collateral attack. In discussion of that issue, 344 F.2d at 261-262, it was said: The cases most nearly in point but by no means exactly so concern guilty pleas proper in other respects, such as right to counsel, but lodged after the police had obtained evidence in violation of constitutional rights; a number of circuits have said such guilty pleas are not subject to attack [citing cases], even when induced by that evidence [citing cases]. In Boucher, the other case cited in Glenn, the petitioner sought to attack his conviction based upon a guilty plea. After stating the waiver rule, this court said: To circumvent the effect of the guilty plea as a waiver, the petitioner asserts that his plea was induced by inadequate representation by counsel and by the fear that unconstitutionally obtained evidence would be used at his trial. 341 F.2d at 981. The opinion then goes on to explain how the petitioner’s representation by counsel had been entirely competent, there were no circumstances indicating an illegal search and seizure, and “There is not a shred of evidence that anyone induced him to plead guilty and the court concluded ‘it was made freely, voluntarily and intelligently.’ ” A hearing was held in Boucher. The meaning of the rule was also left somewhat uncertain by a per curiam, opinion in United States ex rel. Martin v. Fay, 352 F.2d 418 (2 Cir. 1965), cert. denied Martin v. Follette, 384 U.S. 957, 86 S.Ct. 1581, 16 L.Ed.2d 552 (1966). There, a denial without a hearing of an application for habeas corpus was affirmed, where appellant claimed, inter alia, that he pleaded guilty because a coerced confession had been obtained from him. The court said: “An examination of the facts and circumstances surrounding the taking of the plea convinces us that the plea was made voluntarily, the colloquy between the sentencing judge and appellant being decisive.” The court then cited the waiver rule, as stated in Glenn, along with a “see also” citation to Swanson and Boucher. Judge Waterman concurred on the ground of failure to exhaust state remedies, and stated that he thought the court had made an ambiguous use of the word “voluntary,” since although the petitioner had not demonstrated that a hearing would prove his allegation that his guilty plea was “required by an alleged prior forced confession,” “Nevertheless, I can conceive of situations in which a plea of guilty upon the advice of counsel would have been caused by circumstances entitling the defendant to challenge his own act on the ground it was a compelled act.” 352 F.2d at 419. We have in other cases also used language inconsistent with the District Court’s reading of Glenn here. In United States ex rel. Siebold v. Reincke, 362 F.2d 592 (2 Cir. 1966), a denial of a petition for a writ of habeas corpus was affirmed per curiam on the ground that “the hearing before the District Court indicated that petitioner’s guilty plea was not the result of unconstitutionally obtained evidence.” 362 F.2d at 593. In the course of the opinion, it was noted that “A conviction will not be sustained if it rests upon a plea of guilty which is the result of coercion, nor, perhaps, if the plea of guilty resulted from other violations of constitutional rights,” citing Vaughn, supra, (United States ex rel. Vaughn v. LaVallee, 318 F.2d 499 [2d Cir. 1963]), and United States ex rel. McGrath v. LaVallee, 319 F.2d 308, 311 (2 Cir. 1963). Neither Glenn nor Martin was mentioned. In McGrath, the court split three ways (for no hearing, a hearing and outright granting of a writ of habeas corpus) in a case where petitioner contended that his guilty plea had been involuntary — the claim of coercion was based upon what the trial judge said to the petitioner just before the guilty plea was entered. The rule should be stated as follows: Where a petition for habeas corpus raises a claim that a guilty plea was not voluntary, the standards of Townsend v. Sain are applicable in determining whether to hold a hearing; and although the waiver rule means that an allegation that the petitioner’s constitutional rights were violated before the plea was taken is not, standing alone, sufficient to call the validity of the plea into question, nonetheless if it is alleged that the plea was coerced in a manner spelled out in the petition, the alleged violations are not irrelevant to the issue of the voluntariness of the plea. An alleged violation of constitutional rights is simply another factor to be taken into account in determining the voluntariness of the plea. On the other hand, the fact that the petitioner was represented by counsel and acted after consultation with counsel is also to be given substantial weight in determining the issue of voluntariness of plea. From and after Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the state and federal courts have stressed the value and necessity of providing an accused with counsel because, except in the very few cases of inadequate representation, the professional skill and judgment of the attorney, exercised on his client’s behalf, affords the accused protection of his rights. The role of the attorney in advising a plea of guilty should not, therefore, be ignored. Even where there is evidence that a confession has been coerced, there may be factors which would justify counsel for the accused, once a fair hearing by the state court has been held on a motion to suppress the confession and suppression has been denied, to advise a plea of guilty. Therefore, a mere conclusory allegation by a prisoner without more, that the existence of a coerced confession induced his guilty plea, in the absence of any particularized allegations as to how that confession rendered his plea involuntary, should not ordinarily be considered sufficient to predicate an order for a hearing. See United States ex rel. White v. Fay, 349 F.2d 413 (2 Cir. 1965); United States ex rel. Homchak v. New York, 323 F.2d 449 (2 Cir. 1963), cert. denied 376 U.S. 919, 84 S.Ct. 677, 11 L.Ed.2d 615 (1964). The rule we have set out is apparently consistent with the views of at least the Third, Fifth, Sixth, Seventh, and Ninth Circuits. See United States ex rel. Collins v. Maroney, 382 F.2d 547 (3 Cir. 1967) (per curiam); Smith v. Wainwright, 373 F.2d 506 (5 Cir. 1967); cf. Carpenter v. Wainwright, 372 F.2d 940 (5 Cir. 1967), a stronger case for the petitioner; Reed v. Henderson, 385 F.2d 995 (6 Cir. 1967), dictum: “Appellant apparently attempts to circumvent the waiver attending the plea of guilty by claiming that the plea was involuntary in that it was the product of, or induced by, certain coerced admissions which had been obtained from him by the police. That this may be a ground for habeas corpus relief appears to be well settled,” 385 F.2d at 996; Shelton v. United States, 292 F.2d 346 (7 Cir. 1961), cert. denied 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280 (1962); Doran v. Wilson, 369 F.2d 505 (9 Cir. 1966). To sum up: Glenn says, in effect, that a “voluntary” plea of guilty wipes out all prior invasions of the defendant’s constitutional rights. Whether that is correct or not depends on the meaning of “voluntary”; it must be recognized that a prior invasion of the defendant’s rights, even if not sufficient after the taking of the plea to overturn the conviction, may still be entirely relevant to the issue of the plea’s voluntariness. The problem is that Glenn, together with Martin, is sometimes being read by the District Courts to say that a coerced confession or other violation of a defendant’s rights is never relevant to the issue of voluntariness, and in these cases the District Courts are relying upon representation by counsel and proper questioning by the judge at the plea taking to establish voluntariness without more, even where the allegations of the habeas corpus petition raise questions which cannot be answered by reference to the transcript alone. This court has recently discussed the reasons why the voluntary guilty plea constitutes a waiver of all non-jurisdictional defects, United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209 at 213 (2 Cir. 1967): There is nothing inherent in the nature of a plea of guilty which ipso facto renders it a waiver of a defendant’s constitutional claims. Rather, waiver is presumed because ordinarily such a plea is an indication by the defendant that he has deliberately failed or refused to raise his claims by available state procedures; therefore, principles of comity and the interests of orderly federal-state relations require that he should not be allowed to present these claims to the federal courts. A distinguishing feature of the present case, however, is that the only available state procedure by which he could contest the validity of the confession was the one declared retroactively unconstitutional in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). This is even more damaging to an accused than the lack of a right to appeal the intermediate order denying the Fourth Amendment motion to suppress in Rogers, supra, 381 F.2d at 214. Faced with that hazard as his only alternative recourse, made particularly perilous in the context of the first degree murder charge with a possible death penalty, the decision of the accused, on advice of counsel, to plead guilty to second degree murder might well be held to have been involuntary. The petitioner cannot be deemed to have waived his coerced confession claim by deliberately by-passing state procedures when the state failed to afford a constitutionally acceptable means of presenting that claim, and he cannot be deemed to have entered a voluntary plea of guilty if the plea was substantially motivated by a coerced confession the validity of which he was unable, for all practical purposes, to contest. The judgment is reversed and the case remanded with instructions to hear and determine petitioner’s application unless a hearing is held by the courts of the state determining under the standards set forth herein the issue of the voluntariness of petitioner’s plea within 60 days from the date of issuance of the mandate herein, or such further time as the District Court may for good cause allow. II. Turning to United States ex rel. Dash v. Follette, Foster Dash was sentenced on August 3, 1959, in the New York state courts on plea of guilty to a charge of robbery second degree, to imprisonment for a term of 8 to 12 years as a second felony offender. Dash sought release by writ of error coram nobis on the ground that a false confession was obtained from him after indictment in violation of his right to counsel, and that his plea of guilty was induced by advice of counsel that the confession would negate any chance of acquittal and by a threat by the trial judge that he would receive the maximum possible sentence if he went to trial and was found guilty. The writs were denied without hearing, and the orders affirmed by the Appellate Division (People v. Dash, 21 A.D.2d 978, 252 N.Y.S.2d 1016) and by the Court of Appeals (16 N.Y.2d 493, 260 N.Y.S.2d 437, 208 N.E.2d 171 (1965)), two justices dissenting. Petitioner then applied for writ of habeas corpus, alleging similar grounds, in the United States District Court for the Southern District of New York. The Court, John M. Cannella, J., denied the application, relying principally on United States ex rel. Glenn v. McMann, supra, United States ex rel. Swanson v. Reincke, supra, and United States ex rel. Boucher v. Reincke, supra and petitioner appeals. We reverse and remand with instructions. In this case, as in United States ex rel. Ross v. McMann, decided herewith, a state prisoner’s application for writ of habeas corpus was denied without hearing, the court relying largely on United States ex rel. Glenn v. McMann, since the petitioner, represented by counsel, had pleaded guilty in the state court. Here Dash alleges coercion of his confession. (Conviction of two of his co-defendants who went to trial was set aside because it was held that their confessions were coerced. People v. Waterman, 12 A.D.2d 84, 208 N.Y.S.2d 596, aff’d 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1961).) He also alleges coercion of his plea, relying partly on the existence and threatened use of his coerced confession, and partly on an alleged threat by the judge to impose the maximum possible sentence if he were found guilty after a trial. The latter ground was dismissed from consideration by the judge because the report of the state court proceeding, People v. Dash, 16 N.Y.2d 493, 260 N.Y.S.2d 437, 208 N.E.2d 171 (1965), indicated that the prosecutor had filed an affidavit categorically denying that the trial judge ever threatened the defendant. In this case, as in Ross v. McMann, the claim is made that the existence of a coerced confession, in a ease determined prior to Jackson v. Denno, supra, so tainted the state court proceedings that the plea was not voluntary. For the reasons set forth in Ross v. McMann, we think the allegations here sufficient to call for a hearing on the voluntariness of the plea unless a full hearing and determination of the issue is provided in the courts of the state. As we held in Boss, “The petitioner cannot be deemed to have waived his coerced confession claim by deliberately by-passing state procedures when the state failed to afford a constitutionally acceptable means of presenting that claim, and he cannot be deemed to have entered a voluntary plea of guilty if the plea was substantially motivated by a coerced confession the validity of which he was unable, for all practical purposes, to contest.” In these circumstances there is an issue as to the motivation of the plea which cannot be resolved without a hearing. If it was motivated by the claimed threat of the judge, or the existence and threatened use of a coerced confession, it may be found not to have been voluntary. On the other hand, if it is found that there was no such threat by the judge, and if the plea was freely made on advice of counsel because of the weight of the state’s case aside from the confession, with apparent likelihood of conviction regardless of the confession, in a considered effort to obtain a lighter sentence, the court may find the plea voluntary, and the conviction unassailable. Reversed and remanded with instructions to hear and determine petitioner’s application unless a hearing is held by the courts of the state determining under the standards set forth herein the issue of the voluntariness of petitioner’s plea within 60 days from the date of issuance of the mandate herein, or such further time as the District Court may for good cause allow. . Judge Bruchhausen in his opinion recited some of Boss’ allegations, including the following: “In May, 1954, while in State custody, the relator was taken to the office of the District Attorney and questioned about the commission of a murder; he was coerced into signing a statement, confessing the crime; his request to be permitted to consult with his attorney was refused and he was not advised of his right to remain silent; “In October, 1954, he was arraigned on an indictment, charging him with the commission of first degree murder; “Five or six weeks later, he requested his court appointed lawyer, Mr. Harvey Strelzin, to seek the return of the confession; Strelzin urged that no such action be taken; if he persisted in demanding a trial, Mr. Jenkins, a witness for the People would testify against him and he would get the chair; “In February, 1955, he was brought into court, represented by counsel, and informed that the District Attorney was willing to accept a plea to second degree murder and that his sentence would be twenty years to life; he thereupon pleaded guilty to that charge; “March 14, 1955, judgment of conviction was entered, including a sentence of forty-five years to life”; Among other allegations by Ross was the following: “13. Sometime later he visited me again; I would say it was five or six weeks afterward, but I cannot be certain with greater specificity. I asked him then ‘to get my confession back.’ I recall those to have been my exact words. I meant that I wanted to repudiate the confession and have it suppressed. I spoke in the belief that it could be done in some way. He told me that that was completely out of the question and that at any rate the District Attorney had the gun, that nothing had changed, that Jenkins would tell his story to the jury, and that his testimony, backed up by the confession and the gun, would be enough to make ‘a jury of twelve cousins’ convict me and send me to the electric chair. He told me that he would ‘get the first possible break’ for me from, the District Attorney, but that I ‘would be dead by the Fourth of July’ if I risked a trial. “14. When I was brought to Court in February of 1955, Mr. Strelzin came in to see me while I was in the detention cell. I asked him again about repudiating and suppressing my confession ; this seemed to exasperate him because he spoke sharply about having gone all through that before and that I had better listen to him because he was my lawyer and not those convicts in Raymond Street who would all be in Sing Sing in six months with all the law they knew. I told him I had not asked him on the basis of anything anyone had told me. He seemed to grow calmer at that. He told me he had spoken to the District Attorney, who was willing to allow me to plead to second degree murder, and I would get twenty years to life; he said it was an ‘or else’ offer, that I knew the evidence the District Attorney could present against me. He said that things were no better than before and, if anything, were much worse; the District Attorney had the confession, the gun, and Jenkins, who could be expected to tell any story to help himself. If I insisted on going to trial, well, he was my lawyer and would do what he could, though that couldn’t amount to very much because ‘there isn’t a pair in the world to beat four aces.’ Twenty to life was a long time, he wasn’t going to argue that it wasn’t; but it had to be better than the electric chair.” . The cases cited in the quoted discussion in Swanson are the following: Gonzalez v. United States, 210 F.2d 825 (1 Cir. 1954) (denial of motion to vacate judgment affirmed where conviction based on guilty plea and motion based solely on the ground that evidence had been unconstitutionally seized); Hall v. United States, 259 F.2d 430 (8 Cir. 1958), cert. denied 359 U.S. 947, 79 S.Ct. 728, 3 L.Ed.2d 680 (1959) (denial of motion to vacate sentence affirmed where the allegation was of confession after “four hours of intensive interrogation without legal advice or counsel,” but there was a finding in the District Court that there was a “free and voluntary” plea of guilty) ; Watts v. United States, 107 U.S.App.D.C. 367, 278 F.2d 247 (1960) (denial of Sec. 2255 motion to vacate sentence affirmed, where the motion was based on the ground that police used appellant's- co-defendant’s confession to induce him to confess and then to plead guilty, but upon a full hearing in the District Court it was found, on ample evidence, that the guilty plea was “competently, voluntarily and intelligently entered” — the statement, picked up out of context in the West’s headnote, that collateral attack on the plea of guilty would not lie, reads in full, 278 F.2d at 250: “Finally, at the hearing we ordered, appellant frankly admitted his guilt. On this record collateral attack will not lie.”) ; and United States ex rel. Staples v. Pate, 332 F.2d 531 (7 Cir. 1964) (dismissal of petition for habeas corpus affirmed, where petitioner contended that his plea of guilty did not waive prior police misconduct — alleged illegal search— which “induced” his plea, but the District Court found after a hearing that petitioner was not entitled to a writ, and the Court of Appeals noted three times that there was no evidence presented at the hearing that the plea was not voluntary) . . To enable the district court to decide whether or not a hearing should be ordered, additional supporting material such as the affidavit of the attorney who represented the petitioner when he entered the guilty plea, or exhibits or affidavits of persons having knowledge of the claimed facts, should be appended, with the petitioner’s own affidavit, to the original petition filed with the district court. In this case, however, we are satisfied from the petitioner’s affidavit alone that he is entitled to the requested hearing. . The conviction would stand, of course, if the state court found after full and fair evidentiary hearing, either that the confession was voluntary or that the plea was not substantially motivated by the confession. . The District Court summarized the record before it as follows: “Petitioner alleges: (1) that his plea of guilty was the product of a coerced confession, (2) that his plea of guilty was coerced by the trial court by telling him he would get the maximum penalty if found guilty after trial. “In regard to the first contention, it is well settled that a voluntary plea of guilty entered on advice of counsel constitutes a waiver of all nonjurisdictional defects in any prior stage of the proceedings against the defendant. United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2d Cir. 1965); United States ex rel. Swanson v. Reincke, 344 F.2d 260 (2d Cir. 1965); United States ex rel. Boucher v. Reincke, 341 F.2d 977 (2d Cir. 1965). Petitioner therefore cannot succeed on the basis of his first contention. “With respect to the second contention it appears that the prosecutor in the state court proceedings filed an affidavit in which he categorically stated that the trial judge never threatened the defendant. See, People v. Dash, 16 N.Y.2d 493 [260 N.Y.S.2d 437, 208 N.E.2d 171] (1965). “Further the transcript relating to the entry of petitioner’s plea of guilty clenrly indicates that the defendant made an intelligent and uncoerced choice and that no promises or threats were made to him.” . The conviction would stand, of course, if the state court found after full and fair evidentiary hearing, either that the confession was voluntary and there was no threat by the judge, or that the plea was not substantially motivated by the confession or by the alleged threat of the judge.
WATERMAN, Circuit Judge (concurring) : I concur in the opinion for the majority of the in banc Court written by Circuit Judge J. JOSEPH SMITH. I accept Circuit Judge IRVING R. KAUFMAN’S approach in his concurring opinion, and I concur in that opinion, also.
IRVING R. KAUFMAN, Circuit Judge (concurring) (with whom WATERMAN, ANDERSON and FEINBERG, Circuit Judges, concur): I am in full accord with my brother SMITH’S opinion. Because we are not writing on a clean slate, and the majority accordingly came to the only conclusion open to it in Ross and Dash, I feel impelled to respond to the objections raised by my dissenting brothers. Notwithstanding the caustic tones in which one of them has retorted I believe it my responsibility to set forth my views lest one believe that only the dissenters seek to protect us “against those who have made it impossible to live today in safety” Harrison v. United States, 392 U.S. 219, 235, 88 S.Ct. 2008, 2017, 20 L.Ed.2d 1047 (1968) (dissenting opinion) and that the majority has become an ally of criminals, devoid of all interest in the community’s safety and living insensitively in its ivory tower. First, I should hardly have thought it necessary, but for my brothers’ dissent, even to mention the judicial precept that the ultimate guilt or innocence of the defendants has no bearing on the issues before us. Under our system of criminal justice two indispensable conditions must be met to render valid a determination of guilt: not only must the accused actually be guilty of the crime for which he was convicted, but the procedure leading to his conviction must comport with the requirements of due process. Thus, even if we were to agree with my dissenting brother’s declamation that “Men who first confess and then, on the advice of counsel, plead guilty to serious crimes, do so because they are,” I submit that such an observation is gratuitous and irrelevant to the issue before us: whether the state procedures leading to the entry of the pleas of guilty in question were fundamentally fair in a constitutional sense. Second, I am impelled to dissipate the impression that our decision is somehow a novel departure from established constitutional tenets. On the contrary our decisions here are absolutely required by the principles the Supreme Court has long enunciated. Thus, in Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962) the Court cautioned: “ * * * A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” [quoting Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927)]. This instruction of the Court cannot be ignored merely because the particular facts of that case are somewhat different from those in the cases before us, or because nonessential distinctions might be spun. If we could turn our backs on a pronouncement as clear as that quoted merely because the facts in the case under consideration may not be on all fours, no precept or ratio decidendi of the Supreme Court would have any force. It does not require too much imagination to recognize that the principles and the problems we are dealing with are the same. Machibroda mandated that, because of the extreme gravity of a guilty plea, in all cases where a conviction based upon such a plea is attacked we must carefully and conscientiously consider the surrounding circumstances to determine whether is was properly and voluntarily made. And since Machibroda itself involved a collateral attack on a conviction based upon a guilty plea we cannot, as one of my dissenting brothers suggests, ignore the applicability of this mandate to other cases where post conviction attacks are made on the propriety of the guilty pleas merely because they come “long after the defendant has gotten the benefit of his bargain.” Moreover, in Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 224, 100 L.Ed. 126 (1956), the Court further instructed: “ * * * [A] conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause.” [Italics added.] While the petitioner in Herman alleged a more aggravated deprivation of rights than appears in the cases before us, such a distinction is not compelling. Although the court was dealing with a greater degree of contamination, I do not read Herman as preaching a doctrine that the taint must reach only the gradations found there before one may claim the pleas were induced by fundamentally unfair procedures. If the Supreme Court had intended to limit the holding to the precise facts in that case it would have done so explicitly, or at least by intimation, a course it has followed in so many other cases where it desired to achieve such a limited goal. When instead the court enunciated a clear, unqualified, and unequivocal principle of general applicability, we, as an inferior court, are duty •bound to regard it as governing in analogous cases presenting the same question of law. My brother Friendly made the point when he said in another context, “Our duty as an inferior federal court is to apply, as best we can, the standards the Supreme Court has decreed * * United States v. A Motion Picture Film Entitled “I Am Curious-Yellow,” 404 F.2d 196 (2d Cir. decided November 26, 1968) (concurring opinion) at 200 (holding the film not obscene), whether or not we would make the same pronouncements if free to do so. Judges must be careful lest their personal predilections lead them to ignore the constitutional requirements set forth by the Supreme Court, by indulging in sophistic games of distinction-making because they do not approve of the Court’s constitutional determinations. In this instance we are buttressed in our interpretation ..pi Herman, which one of my dissenting brothers pansophically dismisses as “a dismal failure,” by the knowledge that many other federal circuit courts have also “failed” and read Herman precisely as we have. E. g., Reed v. Henderson, 385 F.2d 995, 996 (6th Cir. 1967); Smiley v. Wilson, 378 F.2d 144, 148 (9th Cir. 1967); Bell v. Alabama, 367 F.2d 243, 246 (5th Cir. 1966), cert. denied 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788; Jones v. Cunningham, 297 F.2d 851, 855 (4th Cir. 1962), cert. denied 375 U.S. 832, 84 S.Ct. 42, 11 L.Ed.2d 63 (1963). Indeed, in United States ex rel. Vaughn v. LaVallee, 318 F.2d 499 (2d Cir. 1963), apparently overlooked, my able brother Lumbard endorsed Herman when, citing that case, he remarked “A plea of guilty which is prompted by fear that unconstitutionally obtained evidence will be used at trial will not sustain a conviction.” 318 F.2d at 499. Not only is the result of the majority following the only course left open to a lower court by the Supreme Court, but it is sound because, as the law must, it comports with the realities of the situation. Consider for a moment the paradigm, where the prosecution has no other evidence against the defendant but the confession which it illegally obtained from him, and where, as in Ross and Dash, the defendant has no adequate means of challenging the confession prior to his trial. Under these circumstances it would be nothing less than fantasy for us to say that the existence of the confession could not have substantially motivated the plea. And if, in the more common case, the determination is more difficult because the prosecution also has other evidence against the defendant, I do not believe that such difficulty releases us from the obligation to consider the possibility that the existence of the confession had a substantial motivational effect. In reality we can never, as my brothers urge, escape deciding these cases, as distasteful as it might be. By refusing to consider them individually we merely decide they should all come out the same way — an approach hardly commendable or likely to reach a just result in those cases worthy of consideration. Moreover, once we face up to the realities of the situation, the fundamental fallacy of my dissenting brothers’ argument — that no coercion or untoward pressure of the state caused these pleas— becomes apparent. The state allegedly illegally obtained the confession from the defendant and the state denied him any adequate means of suppressing it prior to trial. How the state can then be transformed into a disassociated neutral observer when defendant pleads guilty because of that confession is too metaphysical for my comprehension. Once it has thus unfairly placed the defendant in an inherently coercive situation, I do not understand our solicitude for the state’s claim that all pleas of guilty must under any and all circumstances be final, absolute and beyond judicial instruction. Moreover, I must emphasize that, as the majority indicates in Ross we are by no means the first or only circuit to reach this result. Particularly in the Fourth Circuit, e. g., White v. Pepersack, 352 F.2d 470, 472 (1965); Jones v. Cunningham, supra; the Fifth Circuit, e. g., Bell v. Alabama, supra; and the Ninth Circuit, e. g., Smiley v. Wilson, supra; Doran v. Wilson, 369 F.2d 505 (1966), the rule my dissenting brothers view as so novel and indeed unprecedented— that a guilty plea induced by the existence of an illegally obtained confession cannot stand — is well established law. And, we long ago embarked on the trying course of reviewing state convictions because the Supreme Court so decreed. See e. g., United States ex rel. Caminito v. Murphy, 222 F.2d 698 (2d Cir. 1955), cert. denied, 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788; United States ex rel. Wade v. Jackson, 256 F.2d 7 (2d Cir. 1958), cert. denied, 357 U.S. 908, 78 S.Ct. 1152, 2 L.Ed.2d 1158; United States ex rel. Corbo v. LaVallee, 270 F.2d 513 (2d Cir. 1959), cert. denied, 361 U.S. 950, 80 S.Ct. 403, 4 L.Ed.2d 382 (1960); where we found confessions coerced, despite jury findings to the contrary which had been accepted by New York Courts. Finally, it would, in my.view, be the rankest unfairness, and indeed a denigration of the rule of law, to recognize the infirmity of the pre-Jackson v. Denno procedure for challenging the legality of a confession in the case of prisoners who went to trial but to deny access to the judicial process to those who improperly pleaded guilty merely because the state would have more difficulty in affording a new trial to them. Nor do I believe that we are free to refuse to consider a valid claim for a hearing because the separation of meritorious claims from those of no merit is difficult. This “difficult” task is faced daily by judges; to avoid it by throwing out all petitions —even meritorious ones — because the chore is onerous would be an abdication of our judicial duty. The Supreme Court clearly stated in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) that where a state prisoner alleges facts which, if proved, would entitle him to relief, he must be afforded a federal hearing on his habeas petition, where he has not received an adequate state hearing on the issue. And the Court has also held, repeatedly and emphatically, that where petitioner’s allegations present an issue of fact not refuted by the files and records, we cannot deny him a hearing merely because his allegations are improbable. Machibroda v. United States, 368 U.S. 487, 494, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Waley v. Johnston, 316 U.S. 101, 102, 104, 62 S.Ct. 964, 86 L.Ed. 1302 (1942); Walker v. Johnston, 312 U.S. 275, 285, 61 S.Ct. 574, 85 L.Ed. 830 (1941). Although our decisions may encourage some prisoners to file petitions wholly devoid of merit, the short answer to this is that most advances in the law have been subject to abuse. But, if this were to deter courts from doing what should be done, the law would remain stagnant. Nor, do I share the belief that the mere filing of such petitions will overwhelm our experienced district judges. The trained judges’ eyes can quickly sift out those not deserving of a hearing. It was not much of a task for the district judge and this Court to do just that with Rosen’s petition. Indeed, the statistics of the Administrative Office of the United States Courts reflect that hearings in state habeas corpus cases between 1966 and 1968 have been granted in only about 8% of the approximately 5000 to 6000 applications filed each year during that period. Moreover, we must not overlook the fact that pleas in the post-Jackson v. Denno era will not be affected by our ruling. In any event, we have already recognized : “There is an understandable tendency to try to avoid hearings * * * where it appears that there is little merit in the petition, and that hearing might well be of no avail to the petitioner. With the crowded dockets and delay caused by a heavy judicial workload, a diligent judge, out of concern for our goal of speedy justice, may well overlook the fact that a particular application alleges sufficient particulars to require a hearing. Our concern for efficiency must not outweigh our concern for individual rights. We cannot refuse a hearing because hearings generally show that there is no real basis for relief, or even because it is improbable that a prisoner can prove his claims.” United States v. Tribote, 297 F.2d 598, 608-604 (2d Cir. 1961). A court of law whose function it is to guard against injustice cannot refuse access to those properly invoking its process merely because it must also deal with others who cry wolf too often. Accordingly, I believe that when, as in Ross and Dash, a petitioner alleges facts sufficient to support his claim that his guilty plea was substantially induced by the existence of a confession illegally obtained from him which he had no adequate means of challenging, and his allegations are not controverted by the record, we cannot avoid our duty — time consuming as it may be — to grant him a hearing. Of course, we are not suggesting for a moment that the writ should be sustained after such hearing. The petitioner must carry the burden of establishing that the coerced confession substantially motivated him in pleading guilty. Thus, we are a long way from the house of horrors which the dissenting opinions suggest would confront us if a reproseeution were ordered. We do no more today than to determine that all petitions cannot be thrown out without regard to their merits merely because “no certain answers” can be given with the precision of a mathematical equation — a condition which the dissenters would seem to require. If this test had validity no court would ever inquire into the voluntariness of a plea of guilty or the voluntariness of a confession, for voluntariness is a purely subjective action and never can “certain answers” be given by the fact finder. One of my dissenting brothers recognizes that “Absent some credible and detailed proof to the contrary, we must assume that [defendant’s] interests have been protected, and that pleas of guilty would not have been offered without substantial basis for believing [they] were guilty * * (Emphasis added.) Ross and Dash merely ask for the chance to give this proof at a hearing, which I cannot find any sound basis for denying in light of the allegations in their petitions. . Administrative Office of the United States Courts, Annual Report of the Director, 1966 and 1967, Tables C-3 and C-4. The information for 1968 is not yet published.
ANDERSON, Circuit Judge (concurring) : I concur in the opinions of Circuit Judges J. JOSEPH SMITH and IRVING R. KAUFMAN.
FEINBERG, Circuit Judge (concurring) : I concur in the opinions of Circuit Judges J. JOSEPH SMITH and IRVING R. KAUFMAN.
LUMBARD, Chief Judge (dissenting) (with whom Circuit Judges MOORE and FRIENDLY concur): I would affirm the denials by the district courts of the petitions of these two state prisoners, Wilbert Ross and Foster Dash, for writs of habeas corpus. In my opinion, these cases are governed by United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2d Cir. 1965), which held that “a voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings.” The conclusion that .the guilty pleas in both of these cases were entered knowingly and without coercion is, to my mind, inescapable. In each of these cases the state prisoner was represented by counsel long prior to the plea of guilty and there was adequate time for full consideration of the case by the defendant and his counsel. Furthermore, it is apparent that the pleas were motivated by knowledge that the state had substantial evidence in addition to any confession it may have had from the defendants. In sum, it is altogether clear that the defendants, after consulting with counsel, made an informed, deliberate and voluntary choice that their interests would be best served by pleading guilty to a lesser degree of the crime charged and by the likelihood that the sentence the judge would impose would be less than if they were to stand trial and be convicted. Nor do I think that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), should be applied to require a hearing in plea of guilty cases to determine whether the existence of the allegedly involuntary confession “coerced” the plea of guilty or whether the plea was taken for other reasons. I would confine Jackson v. Denno to cases where New York used the confession at trial, over objection that it was coerced, at a time when New York failed to provide a means of testing such objection prior to trial; it should not be given retroactive effect to cases where defendants pleaded guilty. To say that a hearing might show these pleas to have been “involuntary” because they were induced by the fact that New York law, at the time of the pleas, provided that the voluntariness of confessions which the petitioners claim they made would be tested by the jury, is to indulge in profitless speculation and to embark upon an inquiry where no certain answers are possible. Even the holding of hearings in such cases will impose upon New York’s judicial system, and in corresponding degree on the Federal system, a substantial burden and needlessly consume the time of assigned counsel, law enforcement officers, prosecutors, those judges who accepted the pleas and those judges who must now take time to hold the hearings. For many years these cases had been concluded and forgotten. How can it be supposed more than 13 years after Ross’ plea of guilty to second degree murder that there can be any reliable reconstruction of what the prosecution and defense knew about the nature and weight of the evidence available in 1955, or about the facts relevant to the “confession” and the state of mind of Ross at the time he pleaded guilty? WhilejRoss has had time in prison to store up memories and imagine what happened in May 1954, when the murder occurred, and in 1955, when he pleaded guilty, the state’s files of the case have been stored away and must be found if they can be. The prosecutor will have little, if any, memory of the case apart from what the file may disclose, and Ross’ counsel, if he be available, may no longer have any files or any memory about the matter whatsoever. Slim as are the chances of any reliable reconstruction of the situation as it bears on the 1955 plea, even slimmer are the chances of again prosecuting the ease should the judgment of conviction based upon the plea of guilty be set aside. The witnesses available in 1955 may no longer be available; and even if they are available they could hardly,, be expected to have any trustworthy memory of events in May 1954. Almost certainly, since there was no trial of the action, none of the witnesses gave testimony in such form that it could be used now in the event that they cannot be located. Of course, the petitioners will testify concerning their claims in the light of their present state of mind with their imaginations prodded and guided by recent court decisions, including the majority opinion here, which point out the facts which will support a petition. Settling cases on pleas of guilty is the means whereby the state and the defendants concerned dispose of about 80% of all charges of serious crime and about 95% of all convictions of such crimes. Of course in all such cases defendants are represented by counsel and, almost without exception, this had been the practice in the State of New York for many years prior to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). It is a system which is advantageous to all the parties concerned; it saves an enormous amount of time for law enforcement officers and prosecutors; almost always it virtually guarantees the defendant a lesser penalty, usually on lessor and fewer charges ; it frequently makes possible the prosecution or disposition of charges against other persons; it enables the judges and courts to handle many times the volume of cases which could be processed were trial required in every case. If a defendant’s decision to plead guilty can be attacked and placed in jeopardy many years later, the state will have been' deprived of a substantial part of the benefit which it properly and fairly thought it should enjoy — namely, achieving a sure and certain result and saving considerable time and expense. Once the court has accepted the plea and imposed sentence there is nothing which the state can do to reopen it. The charges which have ben dismissed and disposed of are finally settled forever. Absent any fraud or overreaching existing at the time of the plea, the same rule should apply with respect to the defendant’s right to reopen the case. The people cannot benefit from any subsequent change in the law and the defendant should have no right to reopen the proceedings years later because some different procedure has been created by judicial decision. The interest in finality is particularly important in this area because of the great percentage of convictions based upon pleas of guilty. As shown by the chart below, about 95% of all New York State indictments resulting in conviction are disposed of by pleas of guilty; in other words, for every conviction obtained after trial, 19 convictions are obtained by guilty pleas. Disposition of Indictments in New York State (excluding youthful offender cases) Year ending June SO, Total dispositions i Disposition by dismissal, discharge on own recognisance, and acquittal Total convictions (after trial and by guilty plea) Convictions by guilty plea % of total convictions based on guilty plea % of total dispositions based on guilty plea 1963 18,711 3,288 15,423 14,655 95.0% 78.3% 1964 17,619 2,445 15,174 14,413 94.9% 81.8% 1965 16,421 2,188 14,233 13,501 94.8% 82.2% 1966 17,447 2,204 15,243 14,482 95.0% 83.0% 1967 18,029 2,701 15,328 14,461 94.3% 80.2% Total 1963-1967 88,227 12,826 75,401 71,512 94.8% 81.0% Were there any reason to suppose that injustice has resulted from the taking of pleas of guilty in New York courts in cases where prisoners, represented by counsel, had confessed, further inquiry would at least be justified. But no such suggestion has been made; no cases of injustice are cited and so far as I am advised there have been no such cases. For many years New York State has provided counsel in all cases where serious crime is charged and the defendant is unable to retain counsel. Absent some credible and detailed proof to the contrary, we must assume that defendants have been properly advised by their counsel, that their interests have been protected, and that pleas of guilty would not have been offered without substantial basis for believing that the defendants were guilty in fact and guilty in law. For these reasons I find no justification in questioning these pleas of guilty in the light of the claims the petitioners have made here. Nor do I find anything in any decision of the Supreme Court which requires a Federal court to hold a hearing on such claims. In Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), the claim was. that the court had not made proper inquiry regarding the voluntary nature of the plea as required by Rule 11, Federal Rules of Criminal Procedure, and also that the plea was entered because of promises and threats of the prosecutor. The court there held that despite affidavit denials by the prosecutor, the issues of fact required a hearing. No such compelling allegations are made by Ross or Dash. Nor does Jackson v. Denno, 378 U.S. 368, 386, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), require the district court to consider the confession claims. Jackson held that a defendant who had gone to trial, before a jury which was left to determine whether the confession admitted in evidence was voluntary, had been denied due process of law, since it was impossible to determine how the jury treated the confession. Here, however, the unconstitutionality of the pr e-Jackson procedure is relevant only for its supposed impact in deterring defendants from going to trial and thereby inducing their pleas of guilty. This impact, which would be virtually impossible to determine since it requires reconstructing the defendant’s state of mind, is unquestionably remote and speculative. It cannot be doubted that the existence of the pr e-Jackson procedure has had a far more remote effect on the reliability of the process for determining guilt, cf. Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), in plea of guilty situations than it has had in cases which actually went to trial. Nor is it accurate to say that going to trial and contesting the voluntariness of their confessions was a useless procedure for defendants who claimed that their confessions had been coerced. Since 1955 this court has carefully examined records in New York State criminal trials where such claims were made, and in some cases we have found that the confessions were coerced, despite jury findings to the contrary which had been accepted by the New York courts. See, e. g., United States ex rel. Caminito v. Murphy, 222 F.2d 698 (2d Cir. 1955), cert. denied, 350 U.S. 896, 76 S.Ct. 155, 100 L.Ed. 788; United States ex rel. Wade v. Jackson, 256 F.2d 7 (2d Cir. 1958), cert. denied, 357 U.S. 908, 78 S.Ct. 1152, 2 L.Ed.2d 1158; United States ex rel. Corbo v. LaVallee, 270 F.2d 513 (2d Cir. 1959), cert. denied, 361 U.S. 950, 80 S.Ct. 403, 4 L.Ed.2d 382 (1960). For these reasons, and because of the far greater effect it would have upon the administration of justice if it were applied to plea of guilty case, I think it is clear that Jackson v. Denno should be applied retroactively only to cases which went to trial. Cf. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). There is no authority to the contrary. In the only case where this court has required a hearing involving a plea of guilty in a state court, United States ex rel. McGrath v. LaVallee, 319 F.2d 308 (2d Cir. 1963), the claim was that the trial judge had coerced the plea; there was no claim of a coerced confession. While I would affirm the denial of the prisoners’ petitions for the reasons stated above, I also believe that even on principles stated in Judge SMITH’S opinion, it is clear that there is an insufficient basis to require a hearing. Therefore I proceed to discuss the facts of the two cases. Petition for Wilbert Ross On February 4, 1955, when Ross pleaded guilty to murder in the second degree, he knew that one Robert Jenkins (whom he does not deny knowing) had told the police that Ross had forced him to commit the murder by threatening Jenkins’ life and the life of Jenkins’ wife. Ross knew this because, by means of an interoffice device, he heard Jenkins tell this to the police. At this time Ross was in jail on a charge of attempted grand larceny. Ross claims that following threats of the detectives, and after his request to consult his lawyer had been refused, he gave a statement which he signed after it had been reduced to writing. He was later questioned by an Assistant District Attorney and he signed a statement which consisted of questions and answers which had been stenographieally recorded. He was not advised about an attorney and he did not ask to consult an attorney. Ross advised the police where they could find the murder weapon and they did find it. Ross does not claim to be innocent of the murder; it is abundantly clear that he is not. Had Ross stood trial and had he testified he would have had to admit to a criminal record — by his own petition he had by then been convicted of attempted grand larceny (whether after trial or on plea he does not state) for which he had meanwhile been sentenced to a term of two to three years in state prison. Ross was represented by Harvey Strelzin, Esq., whose competence he does not question, and Strelzin, who knew of Jenkins and the gun, advised a plea of guilty to murder in the second degree. Ross does not offer Strelzin’s affidavit in support of his position, nor does he account for his failure to submit any affidavit or statement from Strelzin. The majority holds that a petitioner must show that the plea was “substantially motivated by a coerced confession” before he is entitled to relief. As illustrated by Rosen (United States ex rel. Rosen v. Follette, 409 F.2d 1042 [2d Cir.]), which we also decide today, a petitioner is also required to make a substantial showing that the plea was in fact the result of the coerced confession and not of some other factor before he is entitled to a h