(concurring).
This is a motion in the nature of a pro-, ceeding coram nobis to set aside a sentence. It was filed as a part of the criminal proceeding in the district court below of United States v. Kelly, and is so entitled and numbered. The moving papers disclose that it was unknown to the district court when a plea of guilty was entered that certain facts existed which, if known to it, would have compelled the dismissal of the indictment.
These facts are that the thefts with violence were not of mail matter. The issue is presented whether it is the absence of the court’s knowledge of such facts which brings the instant case within the decisions of the analogous habeas corpus proceedings of Mooney v. Holohan, 294 U.S. 103, 110, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Hall v. Johnston, 9 Cir., 91 F.2d 363. It is my opinion that we should consider and dispose of the issue so tendered.
Here the facts as to what Kelly stole were at all times known to him. His sentence on conviction after the plea of guilty is the same as if he had been found guilty after a trial by court or by jury. His situation is as if, after verdict, he discovered that, through his ignorance of the law or that of his attorney, he had failed to offer evidence of facts of which he had full knowledge at the trial and which, if known *492to the court, would have caused his acquittal.
Such are not the facts which, being unknown to the court," would warrant a setting aside of a judgment of conviction in a motion alike to coram nobis. Assuming that that remedy exist (which, despite the hesitancy of our decisison in Crockett v. United States, 9 Cir., 136 F.2d 11, I believe does exist) here we have no more than a mistake of law of which the appellant’s ignorance is no defense.
The facts are not even after-discovered, in which appellant’s remedy is confined to the term of court in which the conviction is had. They do not involve any fraud or unethical and oppressive conduct upon the part of the prosecution. It is not a case of the walking into court by the man of whose murder the moving party has been convicted, though there are similarities in the two situations. It is obvious that if there existed such a remedy as here claimed, the courts would be crowded with such motions.
This is clearly a case in which the denial of a remedy in the district court to a man untrained in the law and without counsel, causes him to continue to be imprisoned for a crime he did not commit. This was recognized in Kelly v. Johnston, 9 Cir., 128 F.2d 793. The testimony of the Government officers in appellant’s habeas corpus proceeding shows he did not steal mail matter and this court so discussed the case in that proceeding. Kelly v. Johnston, supra. However, appellant is not without a remedy provided by law; that is his constitutional right to seek and obtain executive clemency. Cf. Clemency, 38 Code of Federal Regulations §§ 1.1 to 1.21; also 18 U.S.C.A. §§ 568, 728, 729, 730, 731, 732. This is frankly admitted in the discussion in the Government’s brief.
Comment on the right to executive clemency is a customary function of a court in a suit in which a convicted man seeks relief. I am in strong disagreement with the position taken in Judge Wilbur’s opinion in the consideration of Kelly’s habeas corpus proceeding. That opinion, supra, at pages 794 and 795 of 128 F.2d, in a discussion of the executive’s pardoning function, seeks to establish in our federal system that, because Kelly has confessed to several other robberies for which he would be severely punishable under the California law, he should be incarcerated in a federal penitentiary for a federal crime he did not commit.
To me this is a dangerous distortion of any concept of any government of law, certainly of Anglo American law. It would substitute for a government of law the government of men acting extra-legally for the protection of California from persons it regarded as evil, though not ■ convicted nor even indicted for any offense against that state.
What is so stated in Kelly v. Johnston, supra, is contrary to the principle recognized by the Supreme Court in Pettibone v. United States, 148 U.S. 197, 209, 210, 13 S.Ct. 542, 547, 37 L.Ed. 419, where the opinion of the court concludes with the holding “The defendants could neither be indicted nor convicted of a crime against the state in the circuit court, but their offence against United States consisted entirely in the violation of the statute of the United States by corruptly, or by threats or force, impeding or obstructing the due administration of justice. If they were not guilty of that, they could not be convicted; and neither the indictment nor the case can be helped out by reference to the alleged crime against the state, and the defendants be punished for the latter under the guise of a proceeding to punish them for an offence which they did not commit.’,’
' There is no need to belabor the point that no person, however evil, should be imprisoned for any crime, state or federal, which he did not commit. Kelly is entitled to executive clemency.