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 *1026whether 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 prose*1027cution 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).
*1028Although 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.1 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.