(dissenting)
(with whom Circuit Judges MOORE and FRIENDLY concur):I would affirm the denials by the district courts of the petitions of these two state prisoners, Wilbert Ross and Foster Dash, for writs of habeas corpus.
In my opinion, these cases are governed by United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2d Cir. 1965), which held that “a voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings.” The conclusion that .the guilty pleas in both of these cases were entered knowingly and without coercion is, to my mind, inescapable.
In each of these cases the state prisoner was represented by counsel long prior to the plea of guilty and there was adequate time for full consideration of the case by the defendant and his counsel. Furthermore, it is apparent that the pleas were motivated by knowledge that the state had substantial evidence in addition to any confession it may have had from the defendants. In sum, it is altogether clear that the defendants, after consulting with counsel, made an informed, deliberate and voluntary choice that their interests would be best served by pleading guilty to a lesser degree of the crime charged and by the likelihood that the sentence the judge would impose would be less than if they were to stand trial and be convicted.
Nor do I think that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), should be applied to require a hearing in plea of guilty cases to determine whether the existence of the allegedly involuntary confession “coerced” the plea of guilty or whether the plea was taken for other reasons. I would confine Jackson v. Denno to cases where New York used the confession at trial, over objection that it was coerced, at a time when New York failed to provide a means of testing such objection prior to trial; it should not be given retroactive effect to cases where defendants pleaded guilty.
To say that a hearing might show these pleas to have been “involuntary” because they were induced by the fact that New York law, at the time of the pleas, provided that the voluntariness of confessions which the petitioners claim they made would be tested by the jury, is to indulge in profitless speculation and to embark upon an inquiry where no certain answers are possible. Even the holding of hearings in such cases will impose upon New York’s judicial system, and in corresponding degree on the Federal system, a substantial burden and needlessly consume the time of assigned counsel, law enforcement officers, prosecutors, those judges who accepted the pleas and those judges who must now take time to hold the hearings.
For many years these cases had been concluded and forgotten. How can it be supposed more than 13 years after Ross’ plea of guilty to second degree murder that there can be any reliable reconstruction of what the prosecution and defense knew about the nature and weight of the evidence available in 1955, or about the facts relevant to the “confession” and the state of mind of Ross at the time he pleaded guilty? WhilejRoss has had time in prison to store up memories and imagine what happened in May 1954, when the murder occurred, and in 1955, when he pleaded guilty, the state’s files of the case have been stored away and must be found if they can be. The prosecutor will have little, if any, memory of the case apart from what the file may disclose, and Ross’ counsel, if he be available, may no longer have any *1030files or any memory about the matter whatsoever.
Slim as are the chances of any reliable reconstruction of the situation as it bears on the 1955 plea, even slimmer are the chances of again prosecuting the ease should the judgment of conviction based upon the plea of guilty be set aside. The witnesses available in 1955 may no longer be available; and even if they are available they could hardly,, be expected to have any trustworthy memory of events in May 1954. Almost certainly, since there was no trial of the action,1 none of the witnesses gave testimony in such form that it could be used now in the event that they cannot be located.
Of course, the petitioners will testify concerning their claims in the light of their present state of mind with their imaginations prodded and guided by recent court decisions, including the majority opinion here, which point out the facts which will support a petition.
Settling cases on pleas of guilty is the means whereby the state and the defendants concerned dispose of about 80% of all charges of serious crime and about 95% of all convictions of such crimes. Of course in all such cases defendants are represented by counsel and, almost without exception, this had been the practice in the State of New York for many years prior to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). It is a system which is advantageous to all the parties concerned; it saves an enormous amount of time for law enforcement officers and prosecutors; almost always it virtually guarantees the defendant a lesser penalty, usually on lessor and fewer charges ;2 it frequently makes possible the prosecution or disposition of charges against other persons; it enables the judges and courts to handle many times the volume of cases which could be processed were trial required in every case.
If a defendant’s decision to plead guilty can be attacked and placed in jeopardy many years later, the state will have been' deprived of a substantial part of the benefit which it properly and fairly thought it should enjoy — namely, achieving a sure and certain result and saving considerable time and expense. Once the court has accepted the plea and imposed sentence there is nothing which the state can do to reopen it. The charges which have ben dismissed and disposed of are finally settled forever. Absent any fraud or overreaching existing at the time of the plea, the same rule should apply with respect to the defendant’s right to reopen the case. The people cannot benefit from any subsequent change in the law and the defendant should have no right to reopen the proceedings years later because some different procedure has been created by judicial decision.
The interest in finality is particularly important in this area because of the great percentage of convictions based upon pleas of guilty. As shown by the chart below, about 95% of all New York State indictments resulting in conviction are disposed of by pleas of guilty; in other words, for every conviction obtained after trial, 19 convictions are obtained by guilty pleas.
*1031Disposition of Indictments in New York State
(excluding youthful offender cases)3
Year ending June SO, Total dispositions i Disposition by dismissal, discharge on own recognisance, and acquittal Total convictions (after trial and by guilty plea) Convictions by guilty plea % of total convictions based on guilty plea % of total dispositions based on guilty plea
1963 18,711 3,288 15,423 14,655 95.0% 78.3%
1964 17,619 2,445 15,174 14,413 94.9% 81.8%
1965 16,421 2,188 14,233 13,501 94.8% 82.2%
1966 17,447 2,204 15,243 14,482 95.0% 83.0%
1967 18,029 2,701 15,328 14,461 94.3% 80.2%
Total
1963-1967 88,227 12,826 75,401 71,512 94.8% 81.0%
Were there any reason to suppose that injustice has resulted from the taking of pleas of guilty in New York courts in cases where prisoners, represented by counsel, had confessed, further inquiry would at least be justified. But no such suggestion has been made; no cases of injustice are cited and so far as I am advised there have been no such cases. For many years New York State has provided counsel in all cases where serious crime is charged and the defendant is unable to retain counsel. Absent some credible and detailed proof to the contrary, we must assume that defendants have been properly advised by their counsel, that their interests have been protected, and that pleas of guilty would not have been offered without substantial basis for believing that the defendants were guilty in fact and guilty in law.4 5
For these reasons I find no justification in questioning these pleas of guilty in the light of the claims the petitioners have made here. Nor do I find anything in any decision of the Supreme Court which requires a Federal court to hold a hearing on such claims. In Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), the claim was. that the court had not made proper inquiry regarding the voluntary nature of the plea as required by Rule 11, Federal Rules of Criminal Procedure, and also that the plea was entered because of *1032promises and threats of the prosecutor. The court there held that despite affidavit denials by the prosecutor, the issues of fact required a hearing. No such compelling allegations are made by Ross or Dash.
Nor does Jackson v. Denno, 378 U.S. 368, 386, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), require the district court to consider the confession claims. Jackson held that a defendant who had gone to trial, before a jury which was left to determine whether the confession admitted in evidence was voluntary, had been denied due process of law, since it was impossible to determine how the jury treated the confession. Here, however, the unconstitutionality of the pr e-Jackson procedure is relevant only for its supposed impact in deterring defendants from going to trial and thereby inducing their pleas of guilty. This impact, which would be virtually impossible to determine since it requires reconstructing the defendant’s state of mind, is unquestionably remote and speculative. It cannot be doubted that the existence of the pr e-Jackson procedure has had a far more remote effect on the reliability of the process for determining guilt, cf. Johnson v. New Jersey, 384 U.S. 719, 729, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), in plea of guilty situations than it has had in cases which actually went to trial.
Nor is it accurate to say that going to trial and contesting the voluntariness of their confessions was a useless procedure for defendants who claimed that their confessions had been coerced. Since 1955 this court has carefully examined records in New York State criminal trials where such claims were made, and in some cases we have found that the confessions were coerced, despite jury findings to the contrary which had been accepted by the New York courts. 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).
For these reasons, and because of the far greater effect it would have upon the administration of justice if it were applied to plea of guilty case, I think it is clear that Jackson v. Denno should be applied retroactively only to cases which went to trial. Cf. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
There is no authority to the contrary. In the only case where this court has required a hearing involving a plea of guilty in a state court, United States ex rel. McGrath v. LaVallee, 319 F.2d 308 (2d Cir. 1963), the claim was that the trial judge had coerced the plea; there was no claim of a coerced confession.6
While I would affirm the denial of the prisoners’ petitions for the reasons stated above, I also believe that even on principles stated in Judge SMITH’S opinion, it is clear that there is an insufficient basis to require a hearing. Therefore I proceed to discuss the facts of the two cases.
Petition for Wilbert Ross
On February 4, 1955, when Ross pleaded guilty to murder in the second degree, he knew that one Robert Jenkins (whom he does not deny knowing) had told the police that Ross had forced him to commit the murder by threatening Jenkins’ life and the life of Jenkins’ wife. Ross knew this because, by means of an interoffice device, he heard Jenkins tell this to the police. At this time Ross was in jail on a charge of attempted grand larceny. Ross claims that following threats of the detectives, and after his request to consult his lawyer had been refused, he gave a statement which he signed after *1033it had been reduced to writing. He was later questioned by an Assistant District Attorney and he signed a statement which consisted of questions and answers which had been stenographieally recorded. He was not advised about an attorney and he did not ask to consult an attorney.
Ross advised the police where they could find the murder weapon and they did find it. Ross does not claim to be innocent of the murder; it is abundantly clear that he is not.
Had Ross stood trial and had he testified he would have had to admit to a criminal record — by his own petition he had by then been convicted of attempted grand larceny (whether after trial or on plea he does not state) for which he had meanwhile been sentenced to a term of two to three years in state prison.
Ross was represented by Harvey Strelzin, Esq., whose competence he does not question, and Strelzin, who knew of Jenkins and the gun, advised a plea of guilty to murder in the second degree. Ross does not offer Strelzin’s affidavit in support of his position, nor does he account for his failure to submit any affidavit or statement from Strelzin.
The majority holds that a petitioner must show that the plea was “substantially motivated by a coerced confession” before he is entitled to relief. As illustrated by Rosen (United States ex rel. Rosen v. Follette, 409 F.2d 1042 [2d Cir.]), which we also decide today, a petitioner is also required to make a substantial showing that the plea was in fact the result of the coerced confession and not of some other factor before he is entitled to a hearing. Whether the petitioner had made a sufficient showing in any particular case can only be determined by looking at the specific allegations. Where, as here, it appears that there was substantial other evidence against the petitioner, that his counsel recommended that he not pursue the confession claim, that he pleaded to a reduced charge, and that he did not raise the claim for ten years, the petitioner should be required to make more of a showing than the bare boned allegations he has made here before any court should be required to grant a hearing. In my view, petitioner’s unsupported allegations suggest a conclusion that his counsel told him not to bother trying to “get back” his confession and going to trial, since he would, even without the confession (or the gun, for that matter), stand a good chance of being convicted of first degree murder and being sentenced to death. Ross accepted this as good advice and accepted the plea as a good bargain. Far from showing that the plea was substantially motivated by the confession, the allegations show that it was motivated both by the knowledge of guilt and the fear of being convicted for the crime he actually committed. In these circumstances, the plea should stand and no hearing to question it should be required.
Petition for Foster Dash
The petition of Foster Dash seeks a hearing on two different grounds: (1) that the plea was involuntary because there was not available to him at the time of his plea in 1959 a constitutional means of testing the voluntariness of his confession; and (2) that the trial judge coerced him into pleading guilty by threatening him that he would get the maximum sentence if he stood trial and was convicted. As to the first ground, I would deny relief for the reasons I have set forth above.
But, even applying the standards set forth in Judge SMITH’S opinion, I do not believe a hearing should be granted as Dash gives no reason why he has not supported his petition with an affidavit or statement of his counsel. In fact there is nothing in the record to show who counsel was. The petition is wholly insufficient in failing to supply many material details of which the petitioner must have knowledge.
From Dash’s sketchy petition, the answering affidavit of an Assistant Attorney General which is not controverted by Dash as to any stated facts, and from the decisions of the New York courts *1034concerning Dash and his three co-defendants the following emerges:
On February 9,1959, four persons, one of whom was armed, held up and robbed one Shedletsky in Bronx County. On February 24, 1959, the Grand Jury indicted Joseph E. Fields, “John Doe,” “Richard Roe” and “Peter Doe” for the crime. Fields was the only one who had been apprehended soon after the crime and it was he who shortly thereafter named as his three confederates the petitioner, Foster Dash, Albert Devine and Rudolph Waterman.7
Dash was arrested on February 25 or 26. His petition alleges the police took him to a station house in New York County where he was beaten but said nothing and thereafter to a station house in the Bronx. He requested to contact his family, or; that he be permitted to have counsel, but he alleges these were denied him. He was further questioned and held incommunicado for 7% hours and then taken to the district attorney’s office. He alleges threats made to him and the denial of his further requests. He says that he “then involuntarily signed a prefabricated confession to a crime that I did not commit.”
Dash first mentions his “defense counsel” as being present on March 16, 1959 when he appeared for pleading and the district attorney “was only offering a plea to robbery in the first degree.” He claims counsel advised him to plead guilty and throw himself on the mercy of the court because of the confession.
When the case came up again for pleading on April 1, 1959, Dash alleges the trial judge stated that if he went to trial and lost, the court would impose the maximum penalty and the judge said the crime with which he was charged was “next to murder.”
Dash alleges that when the case was called again on April 6, he entered a plea of robbery in the second degree “due to the undue pressure which was placed upon this relator, as well as the alleged co-defendant.” Later in his petition Dash states that “the threats made by the court was not a matter of open record.” Fields also pleaded guilty that day. Later, on August 3, 1959, Dash was sentenced to a term of 8 to 12 years as a multiple offender. From Dash’s petition it seems that prior to the plea he was already a second felony offender and if he pleaded guilty he faced a possible maximum sentence of 60 years. Fields was sentenced to 10 to 12 years.
Waterman and Devine stood trial and following their conviction for robbery first degree, grand larceny second degree and assault second degree, they received sentences of 15 to 20 years. The Appellate Division in People v. Waterman, 12 A.D.2d 84, 208 N.Y.S.2d 596, reversed the convictions and the Court of Appeals affirmed on the ground that it was constitutional error to admit into evidence the post-indictment statement of Waterman taken in the absence of counsel, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1961). Waterman and Devine later pleaded guilty to assault second degree and were sentenced to 2% to 3 years.
Dash then brought coram nobis proceedings, seeking treatment similar to Waterman and Devine on the ground that his confession had induced his plea of guilty, and he also claimed his plea was coerced by the judge’s threat. His petition was denied by all courts although in the Court of Appeals two judges voted to remand for a hearing as to whether the guilty plea was coerced. In its memorandum decision, People v. Dash, 16 N.Y.2d 493, 260 N.Y.S.2d 437, 208 N.E.2d 171 (1965), the Court of Appeals, because Jackson v. Denno, supra, had but recently been decided, expressly approved its earlier holding in People v. Nicholson, 11 N.Y.2d 1067, 230 N.Y.S.2d 220, 184 N.E.2d 190 (1962), that it would not listen to post-conviction attacks on confessions *1035where defendants had pleaded guilty. The court wrote:
“A defendant who has knowingly and voluntarily pleaded guilty may not thereafter attack the judgment of conviction entered thereon by coram nobis or other post-conviction remedy on the ground that he had been coerced into making a confession and that the existence of such coerced confession induced him to enter the plea of guilty. If a defendant desires to contest the voluntariness of his confession, he must do so by pleading not guilty and then raising the point upon the trial; he may not plead guilty and then, years later, at a time when the prosecution is perhaps unable to prove its ease, assert his alleged constitutional violation. The issue as to whether the confession was illegally obtained is waived by the guilty plea.”
Thereafter Dash knocked on the federal court doors of the Southern District.
In my view, Dash, advised by counsel, made a deliberate and voluntary choice that his interests were best served by his plea of guilty. He must have known that Fields had made a statement to the police which implicated him; he did not know what Waterman and Devine might do.
But the petitioner says nothing about what counsel advised him, what he and counsel knew and what evidence was available to the state. We are not even told the name of counsel and whether counsel was retained or assigned. We do not know whether the victim of the robbery, Shedletsky, could identify Dash; obviously he had identified Fields who was caught soon after the crime.
As to the second ground for a hearing, the alleged threats of the judge, the New York Court of Appeals has passed upon this and has held in effect that not enough is alleged to require a hearing. I agree. The allegation seems to amount to little more than that the judge pointed out to the defendant, as indeed he should have, what he faced in the event of conviction, whether by trial or plea. Obviously the record does not bear the petitioner out as he alleges that “the threats made by the court was not a matter of open record.” If we had before us an affidavit of counsel or any other reliable witness to support Dash’s claim of judicial coercion there might be sufficient reason to order a hearing as we did in United States ex rel. McGrath v. LaVallee, 319 F.2d 308 (2d Cir. 1963) where the court thought the minutes were ambiguous. But here there is insufficient substantiation and the district court properly denied a hearing.
For these reasons I would affirm the judgments of the district courts which denied the petitions of Ross and Dash for writs of habeas corpus.
The enforcement of their criminal laws by the states is an area where federal courts should act with some care and with due appreciation of the consequences. When the Supreme Court decided Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 2d 837 (1963), where it held that federal habeas corpus is still available to a state prisoner even though he has failed to appeal his conviction, Mr. Justice Clark in his dissent pointed out that the floodgates were being opened. The following year state prisoners filed 3,531 petitions in federal courts, an 80% increase over the 1,903 petitions the year before. The tide rises year by year:
Fiscal Year State Prisoner Habeas Corpus petitions filed im the District Courts 8
1963 1,903
1964 3,531
1965 4,664
1966 5,162
1967 5,948
1968 6,331
*1036As a majority of my colleagues have now clearly charted for all state prisoners who are imprisoned after pleas of guilty what they must allege in order to get a hearing, it will follow as surely as night follows day that the federal courts will be inundated with petitions which will total many times the 6,331 commenced in 1968.
Everywhere in the United States local courts and prosecutors are today having to cope with a steadily mounting increase in criminal cases each one of which requires two or three times more court time than was the case a few years ago. Counsel is usually assigned at the beginning of the case, at least as early as the arraignment. Thereafter preliminary hearings are held on search and seizure, the admissibility of confessions, identification and other evidence. Only after such hearings have been decided adversely to the defendant, are cases tried or pleas of guilty entered. Thereafter appeals are taken, and in New York these may be taken even after pleas of guilty. But this will not be the end because the federal courts, if the views of my colleagues in these cases should prevail, must now entertain petitions from state prisoners who pleaded guilty years ago and hold thousands of hearings.
With these decisions we accelerate unmistakably the trend toward federal court supervision and correction of every possible error or supposed error which can be made in the prosecution of a state criminal case. What plea of guilty cannot be alleged to have been “coerced” for some fanciful reason ? What is there left which cannot be argued to be a violation of due process, or an unequal protection of the laws ? How is the most competent and experienced attorney who is assigned to represent a defendant to protect himself against any charges of incompetence or failure fully to advise a defendant regarding a proper defense to the charges or a settlement by way of guilty plea?
I wish to be counted among those who do not think federal judges were ever meant to review every state criminal proceeding or that there is any basis for supposing that they can reach a more just result than the state court judges. We would be well advised not to arrogate so much ultimate power to ourselves, as has been done by federal decisions the past six years, in the name of safeguarding constitutional rights, and to be chary of exercising such power except in the most compelling circumstances. We have gone far enough already; we should not take the further step which will lead to the review, in one guise or another, of every plea entered in a state court.
I would affirm the district court orders which denied the petitions.
. In this respect the state is usually at a serious disadvantage where pleas of guilty are nullified and the case must be tried years later. Where there has been a trial and a retrial is required, the state may use the evidence of a witness who has become unavailable. New York Code of Criminal Procedure § 8(3) (d). Where a defendant has pleaded guilty, however, it would be a very rare case where the witness would have testified under oath subject to cross-examination under such circumstances that the evidence could, be used if the witness were later unavailable.
. The rationale for this has been articulated in the American Bar Association Standards for Pleas of Guilty, formulated by an Advisory Committee of which Walter V. Schaefer, Justice of the Supreme Court of Illinois, was Chairman and adopted by the ABA House of Delegates in February 1969.
. From the annual reports of the Administrative Board of the Judicial Conference of the State of New York, for the years 1964 (pp. 236-239), 1965 (pp. 193-195), 1966 (pp. 269-271), 1967 (pp. 243-246), 1968 (pp. 333-335).
. The figures were arrived at by adding the figures from the Criminal Terms of the Supreme Court of New York City and the Supreme and County Courts outside New York City. The figures include all indictments disposed of:
(1) by plea of guilty to felony before, during or after trial,
(2) by plea of guilty to misdemeanor reduced from felony before, during, or after trial,
(3) by dismissal of the indictment,
(4) by discharge on own recognizance,
(5) by direction of acquittal,
(6) by acquittal after trial,
(7) by conviction after trial.
. Of course the gross incompetence of counsel or other circumstances indicating substantial failure of representation would present a different question under the Sixth Amendment. No claim of that sort is even suggested in these cases.
. Following this 1963 opinion there was an extensive hearing in the district court at which the state judge testified. The district court judge held that there had been no coercion by the state court judge and we affirmed the district court’s denial of the petition for habeas corpus. 348 F.2d 373.
. Apparently Waterman was not questioned until June, 1959, when he was in prison on another charge. The record does not show when Devine was arrested.
. The District of Columbia, the Canal Zone, Guam and the Virgin Islands are excluded. See the Annual Report of the Director of the Administrative Office of the United States Courts (page 11 — 44, preliminary ed. 1968).
Of the total of 27,539 such petitions filed during the period from 1963-1968, *10363,581, or 13% were filed in the district courts of the Second Circuit. See the annual reports of the Director of the Administrative Office of the United States Courts for the years 1963 (p. 201), 1964 (p. 221), 1965 (p. 183), 1966 (p. 175), 1967 (p. 205), 1968 (table C-3, preliminary editionl.