Justice (concurring in the denial of the application for writ of habeas corpus):
On May 11, 1959, Alphonse Johnson was charged by five bills of information with the crime of theft committed in the Parish of Tensas, Louisiana. He did not request counsel and pleaded guilty to the charges preferred against him. The minutes of court, May 11, 1959, are silent as to counsel. A pre-sentence investigation by a probation officer was ordered. Defendant was sentenced on June 8, 1959, to serve two years in the Louisiana State Penitentiary for each offense, said sentences to run consecutively. Defendant was received at the penitentiary on June 9, 1959, and was paroled on October 9, 1962; on January 12, 1968, he was returned to the penitenitary as a parole violator, owing six years and eight months, plus a new term of five years.
Defendant’s release date on “good time” is October 18, 1973; his “parole” date is December 2, 1971; and, September 12, 1979 is his “full term” date.
On May 5, 1969, the United States Supreme Court, by per curiam opinion, decided the case of Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969).
This matter involved the acceptance of a guilty plea in a case where a United States District Judge who accepted it failed to comply with Rule 11 of the Federal Rules of Criminal Procedure.
The per curiam stated in part:
“In McCarthy we noted that the practice we were requiring had been previously followed by only one Circuit; that over 85% of all convictions in the federal courts are obtained pursuant to guilty pleas-, and that prior to Rule ll’s recent amendment, not all district judges personally questioned defendants before accepting their guilty pleas. Thus, in view of the general application of Rule 11 in a manner inconsistent with our holding in McCarthy, and in view of the large number of constitutionally valid convictions that may have been obtained without full compliance with Rule 11, we decline to apply McCarthy retroactively. We hold that only those defendants whose guilty pleas were accepted after April Z, 1969, are entitled to plead anew if their pleas were accepted without full compliance with Rule 11,
“Accordingly, the judgment of the Court of Appeals for the First Circuit is affirmed
“Affirmed.” (Emphasis mine.)
It is my view that the foregoing per curiam was rendered to put an end to a massive and indiscriminate jail and penitentiary release and delivery from custody *833of convicted criminals, which had been caused by the rendition of Gideon v. Wainwright and similar decisions.
I am firmly of the opinion that the United States Supreme Court, in rendering this per curiam, realized the effect of the violence of these decisions to the enforcement of criminal justice in this Nation, and established a deadline date. If my opinion is erroneous, the Supreme Court of the United States will, without doubt, say so.
I believe, however, that my opinion is corroborated by the action of the Supreme Court in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, June 22, 1966, as follows:
“We hold that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision. We hold further that Miranda applies only to cases in which the trial began after the date of our decision one week ago. * * * ”
The Court established a deadline in Johnson; it evidently realized the devastating effect of its failure to set a deadline in Miranda.
In Johnson, the Supreme Court did say, 86 S.Ct. 1779, “* * * Thus while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the nonretroactivity of these decisions will not preclude persons whose trials have already been completed from: invoking “the same safeguards as part of 'an involuntariness claim.”
In my opinion, involuntariness has riot been shown. Miranda and Johnson were later cases and did not apply to defendant’s rights at the time he entered the pleas of guilty.
In the instant matter applicant was sentenced on June 8, 1959. The minutes of the district court show that a pre-sentence investigation by a probation officer was ordered prior to sentence. Applicant waited eleven years before applying for release by habeas corpus proceedings. Judge Voelker, who was the trial judge in 1959, is now dead. The , District Attorney, Honorable Clark Thompson, is still living.
Now, would an evidentiary hearing accomplish anything? I think not.
In State ex rel. Ardoin v. Henderson, 255 La. 1029, 233 So.2d 923 (1970), the accused was sentenced on May 20, 1963. He plead guilty to four counts of simple burglary, and he was sentenced on that date to serve seven years imprisonment at Angola, on each count, to run consecutively. We stated that since our problem dealt with the state of the law in 1963, we must consider its status • at that time. After reviewing authorities and discussing Gideon v. Wainwright, we held:
“Secondly, the Federal Supreme Court in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), when *835faced with a decision on the minute entry-required to be made in a guilty plea wrote: ‘It was error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.’ The Court then held that the Supreme Court of Alabama, which affirmed the conviction, should be reversed 'because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.’ This decision, however, was not made retroactive. In our view it should not have retroactive application and will not be so applied because of the decisions in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), and Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), and because of the effect retroactive application would have upon the administration of justice. These latter two cases, holding that the record must show the voluntary character of a guilty plea under Rule 11 of the Federal Rules of Criminal Procedure, were not applied retroactively; and we consider those cases analogous to the facts before us.”
In the Ardoin case, the trial judge filed a per curiam. It recited:
“The undersigned was not the presiding judge at the time of petitioner’s plea and sentence in 1963 and, therefore, had no > knowledge of what transpired other than minute entries which were produced at the hearing on November 21, 1969. The minute entries revealed that petitioner was arraigned in the usual and customary manner of the year 1963. The minutes do not reveal that he might have counsel appointed if he so desired. The minutes are silent in that respect.”
An evidentiary hearing in this manner would, in my opinion, avail nothing. The trial judge is dead. The minutes speak for themselves. They show that applicant did not have counsel at the time of his plea of guilty and sentence.
I respectfully concur in the denial of the application for Writ of Habeas Corpus.