(dissenting).
Two issues, and two issues only, are raised by this appeal: (1) Did petitioner comply with the requirements of 28 U.S.C. § 2254 by exhausting the state remedies available to him? (2) If he did exhaust the state remedies, is he entitled to a hearing before the U. S. District Court in order to present his proof of the facts he alleges in his petition? I concur with my colleagues in holding that the provisions of 28 U.S.C. § 2254 did not preclude the district court from exercising jurisdiction in this cause. I must dissent from the result they reach, however, for their decision on the second issue appears to me to be in conflict with decisions of the Supreme Court and with prior holdings of this court.
Petitioner is presently incarcerated in the Auburn State Prison under a judgment of conviction rendered by a New York state court pursuant to the New York Multiple Offender Law. New York Penal Law, § 1942. His sentencing thereunder as a fourth offender was based partly upon a prior conviction in Maryland; and it is the validity of this Maryland state conviction, upon which the correctness of the present New York sentence depends, United States ex rel. Smith v. Jackson, 2 Cir., 1956, 234 F.2d 742, that is questioned by the application for a writ of habeas corpus now before us. It is well established that when application is made for a writ of habeas corpus, the allegations contained in the petition are to be taken as true unless, after a hearing, the district court determines otherwise.1 2This principle has recently been re-emphasized by the Supreme Court’s per curiam reversal of the denial of a hearing to a federal prisoner who alleged in his petition that his conviction upon a plea of guilty had been obtained when he was not represented by any counsel, when he had not intelligently and competently waived his right to be so represented, and when the plea was obtained by threat, promise and coercion without his having been informed of the charges against him.2 So it is established that a petitioner is entitled to a hearing unless, as a matter of law, the petition fails to set forth circumstances indicating that he is imprisoned in violation of rights guaranteed by the federal constitution.3 And, too, in order that a petitioner entitled to relief shall not be denied justice a petition for habeas corpus should not be scrutinized with technical nicety. See Holiday v. Johnston, 1941, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392; United States ex rel. Marcial v. Fay, 2 Cir., 1957, 247 F.2d 662. It is enough if the allegations of the petition fairly call into question the validity of the judgment under which the petitioner is imprisoned. These principles, so firmly established that they are no longer open to serious question, ordinarily would require no discussion or restatement. They are reasserted here only because the error into which I believe my colleagues have fallen appears to have resulted from overlooking them.
Thus, merely by examination of Farns-worth’s petition, the majority find that the allegations therein contained are *446“implausible” and that “His claim of ignorance as to the charges against him is incredible * * * ”. That may well be, but a unanimous Supreme Court noted in Walker v. Johnston, 312 U.S. 275, 287, 61 S.Ct. 574, 579, 85 L.Ed. 830, that “The Government’s contention that his [petitioner’s] allegations are improbable and unbelievable cannot serve to deny him an opportunity to support them by evidence.” Hence it would seem clear that prior to a hearing we should not not draw inferences of fact from petitioner’s allegations that are unfavorable to him. Yet the majority conclude that “some part of the indictment was dismissed, perhaps in order to give him a lighter jail sentence.” I am required to interpret the majority opinion as subjecting Farnsworth to the “trial by pleadings” that prior decisions have so uniformly denounced.
The allegations of the petition, which .at this stage of the proceedings must be taken as true, recite that the petitioner, aged 23, without a completed high school •education, was brought into court under four indictments, each indictment containing three counts — twelve counts in .all. Each indictment contained one count for forgery, another for uttering a forged instrument, and a third for obtaining money under false pretenses. Under Maryland law, the crimes charged in the first two counts were felonies,4 and the one charged in the third count was a misdemeanor.5 The petitioner was told by officials of the Baltimore City Jail that if he pleaded guilty he would be sentenced only for a misdemeanor, but that if he persisted in a plea of not guilty and was tried and convicted he would be .sentenced to the penitentiary for a much longer term, and would also suffer the loss of various civil rights.* When he was taken before the court the indictments were not read to him; nor did the trial court advise him of the charges against him or of the consequences of a plea of guilty. In proceedings which lasted approximately one minute, the court received petitioner’s plea and sentenced him to the Baltimore City Jail for forgery without even inquiring whether there were any reasons why judgment should not be pronounced. And there is a further allegation that petitioner was not aware until 1947 that he had pleaded guilty to, and therefore had been found guilty of, a felony; and that as soon as he acquired this knowledge he promptly commenced proceedings to correct or invalidate the record of his conviction. If these allegations are true, it cannot be seriously doubted that the Maryland conviction was invalid. Consequently, the petitioner is entitled to a hearing so that he may have an opportunity to establish their truth.6
The majority, in holding that Farns-worth is not entitled to a hearing on the face of his petition, rely upon Quicksall v. Michigan for the proposition that a plea of guilty entered without benefit of counsel will not be invalidated unless there is a showing of unfairness attributable to lack of counsel. Quicksall is inapposite since there the defendant was aware of his right to be represented— hence he could not have been prejudiced by the failure of the court to advise him of his right. In addition, the record before the Supreme Court indicated that the trial court was “clearly satisfied that the plea of guilty is made freely, understanding^ and voluntarily * * * 339 U.S. 660, 662, 70 S.Ct. 910, 911. While the safeguards attendant upon reception of a plea of guilty in the state courts may not be as stringent as those *447required in the federal system, see United States v. Lester, 2 Cir., 1957, 247 F.2d 496, the Supreme Court when it has declared that a state conviction was unassailable under the Fourteenth Amendment has relied upon evidence that the defendant had been advised of the nature of the charges against him and the consequences of his plea. See, e. g., Bute v. Illinois, 1948, 333 U.S. 640, 68 S.Ct. 763, 92 L.Ed. 986; Foster v. Illinois, 1947, 332 U.S. 134, 67 S.Ct. 1716, 91 L.Ed. 1955. The importance of proper performance of the trial court’s role is amply demonstrated by the present case. Not only does petitioner declare that he was unaware of the charges which had been placed against him, but he was told by his jailers, persons whom a layman might reasonably suppose to be in a position of authority, that if he pleaded guilty he would be sentenced only for a misdemeanor. This aspect of the case is strikingly similar to the circumstances presented in Smith v. O’Grady, 1941, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 and Palmer v. Ashe, 1951, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154, in each of which the Supreme Court held that a hearing was required to determine the truth of allegations that the prosecutor had misrepresented the nature of the offense charged by the indictment. A defendant unaware of the nature of the charges to which be is pleading certainly has not had the notice that is a prime requisite of due process. Proper safeguard of Farnsworth’s rights might have been achieved by the Maryland trial court; but, as the Supreme Court stated in a case where a state trial court denied a petitioner a hearing upon habeas corpus, Uveges v. Pennsylvania, 1948, 335 U.S. 437, 442, 69 S.Ct. 184, 186, “The record shows no attempt on the part of the court to make him understand the consequences of his plea. Whatever our decision might have been if the trial court had informed him of his rights and conscientiously had undertaken to perform the functions ordinarily entrusted to counsel, we conclude that the opportunity to have counsel in this case was a necessary element of a fair hearing.” 7
As I read the majority opinions, however, even if Farnsworth was indueed to plead guilty by the misrepresentation that the plea was for a misdemeanor rather than a felony, he was not prejudiced; and, therefore, he is not entitled to relief as a matter of law even if his allegations are true. The argument is based upon the fact that had Farnsworth pleaded guilty to the misdemeanor counts, he could have received sentences of ten years on each. It ignores the fact that the severity of the penalty imposed for commission of a crime is not dependent solely upon the sentence which may be imposed. Under Maryland law a convicted felon suffers the loss of certain civil rights; and, indeed, subjects himself to additional criminal liability if he attempts to assert those rights. See Annotated Code of Maryland (1924) Article 33, § 109. In addition, the argument has a rather hollow sound in view of the fact that petitioner as a fourth felony offender continues to suffer from the consequences of the alleged misrepresentation.
Furthermore, I would point out that in Judge Lumbard’s opinion it is clear that the petitioner is refused a hearing because of factors which prior decisions have uniformly declared to be irrelevant. Thus, in his opinion, he refers to the-fact that Farnsworth nowhere alleges innocence of the forgery for which he-was convicted. Indeed, upon analysis of that opinion, it appears that the basis for the holding that Farnsworth was not prejudiced by not having counsel is the-conclusion that he must have been guilty of the forgery. The irrelevancy of that. *448consideration is amply demonstrated by our recent decision in United States ex rel. Savini v. Jackson, 2 Cir., 1957, 250 F.2d 349, in which the petitioner was held entitled to relief even though he admitted that he might be guilty of the offense for which he had been convicted. See United States v. Morgan, 2 Cir., 1955, 222 F.2d 673.
The Savini decision is also relevant to the Judge Lumbard assertion that a hearing should not be granted because of the difficulties of proof inherent in considering a collateral attack upon a 1929 conviction. There, as here, the Attorney General of New York urged upon us the great difficulty in defending convictions in another state against a collateral attack. Judge Hincks pointed out, 250 F.2d at pages 354-355, that “the burden * * * is an inescapable incident to legislation such as the New York Multiple Offender Law. To the extent that any State makes its penal sanctions depend in part on the fact of prior convictions elsewhere, necessarily it must assume,, the burden of meeting attacks on the constitutionality of such prior convictions. Constitutional guarantees should not be shorn of their vitality merely to facilitate the administration of a penal policy whereby the sentence on one conviction depends in part on a prior conviction.” See also Palmer v. Ashe, supra, in which the Supreme Court ordered a hearing to determine the validity of a conviction rendered eighteen years prior to the petition for habeas corpus.
In conclusion, I submit in all deference that my colleagues err in denying petitioner a hearing so that he may have the opportunity to establish the truth of the allegations contained in his petition. If these allegations can be substantiated the Maryland conviction lacked the fundamental fairness which is required by the Fourteenth Amendment. Consequently, the petitioner is entitled to his day in court, Walker v. Johnston, 1941, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830.
I would reverse and remand to the District Court.
. House v. Mayo, 1945, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; Smith v. O’Grady, 1941, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859.
. Zavada v. United States, 1958, 355 U.S. 392, 78 S.Ct. 383, 2 L.Ed.2d 356. Zavada had not petitioned for habeas corpus but instead moved under 28 U.S.C. § 2255 to vacate the sentence against him. The procedure under § 2255 is not, however, materially different from that in 28 U.S.C. § 2243 which governs procedure upon application for a writ of habeas corpus.
. Com. of Pennsylvania ex rel. Herman v. Claudy, 1956, 350 U.S. 116, 76 S.Ct. 223; Palmer v. Ashe, 1951, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154; Walker v. Johnston, 1941, 312 U.S. 275, 61 S.Ct. 574; United States ex rel. Marcial v. Fay, 2 Cir., 1957, 247 F.2d 662.
. Annotated Code of Maryland (1924) Article 27, § 44.
. Annotated Code of Maryland (1924) Article 27, § 139.
Farnsworth alleges in paragraph 21 of his petition that
“He was advised if, when he appeared before the court, he pleaded guilty that he would be sentenced to the Baltimore City Jail for misdemeanor and warned if he pleaded not guilty and was convicted that he would probably be sentenced to the penitentiary for a much longer term and lose his right to vote and other undefined privileges.”
. See cases cited in footnotes 1 and 3.
. Uveges, like Smith v. O’Grady and Palmer v. Ashe, involved claims of overreaching by state authorities. Cf. Townsend v. Burke, 1948, 334 U.S. 736, 740, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690, in which the Supreme Court held an uncounseled defendant entitled to relief because lie was either “overreached by the prosecution’s submission of misinformation to the court or was prejudiced by t-he court’s own misreading of the record.”