dissenting:
This is an appeal from a district court order denying post-conviction relief to Lawrence Hefner, an inmate of the Nevada State Prison. He is there confined pursuant to judgments and concurrent sentences entered upon his plea of guilty to two separate charges of robbery. In each instance, without counsel, he had waived preliminary examination before the justice’s court. He was represented by court appointed counsel in the district court, pled not guilty to each charge, and soon thereafter changed his pleas to guilty. He now challenges the validity of the convictions entered pursuant to his pleas of guilty, asserting infirmity since he waived preliminary examinations without the assistance of counsel, and was denied effective counsel in the district court causing him to change his pleas from not guilty to guilty.
The district court denied his petition peremptorily with the observation that “no grounds for the issuance of the writ have been stated.” An evidentiary hearing did not occur. Denial of the collateral post-conviction challenge based upon the absence *378of counsel when the petitioner waived preliminary examinations before the justice’s court was proper. His subsequent guilty pleas to the district court precluded that challenge. Hall v. Warden, 83 Nev. 446, 453, 434 P.2d 425 (1967). However, his attack upon the voluntariness of his guilty pleas may be raised collaterally in a post-conviction proceeding (Hall v. Warden, supra), and the allegations of his petition in this regard contain sufficient substance to require an evidentiary hearing. I would, therefore, remand this matter to the district court for such limited hearing, and turn to express my reasons.
The petition advances a combination of circumstances which bear upon the voluntariness of his guilty pleas. According to the petitioner, he was threatened with the possibility of a life sentence as an habitual criminal if he did not plead guilty to the charges. Additionally, he asserts that his counsel made no investigation of the circumstances of the crimes with which he, Hefner, was charged. The petitioner did not confess to the crimes, nor give incriminating statements. The evidence, if any, in the possession of the state suggesting his guilt, was not disclosed. The court did not inquire as to whether there was a factual basis for his guilty pleas.
A guilty plea must not be induced by promises or threats which deprive it of the character of a voluntary act. Machibroda v. United States, 368 U.S. 487 (1962). The combination of circumstances to which I have alluded bear upon the central issue of voluntariness and, I think, are of sufficient substance to require an evidentiary hearing. Perhaps the petitioner’s allegations are untrue. On the other hand, they may speak the truth. In either event, a fair determination cannot be made without an evidentiary hearing. The mere fact that he was represented by counsel does not foreclose access to the courts. Yet, I consider this to be the true holding of the majority opinion.
When the 'sentencing judge accepted the guilty pleas full inquiry bearing upon the voluntariness of such pleas should have been made. Had such inquiry occurred the need for a post-conviction evidentiary hearing would have been precluded, since the court to which the post-conviction application was presented could rule upon the record made by the sentencing judge without taking evidence. Unfortunately, such a record was not made by the sentencing judge in the case at hand and an evidentiary hearing should now be conducted.
Respectfully, I dissent.