(dissenting).
I respectfully dissent. The theory of the majority is that the district court is given a token and meaningless discretion to determine if a question raised by petitioner is simple or complex, or whether “the difficulties involved in presenting a particular matter are such that a fair and meaningful hearing cannot be had without the aid of counsel.” In other words, this court purports to set itself up as better qualified to pass on whether an issue is simple or complex — whether the hearing is meaningful or unfair— than is the trial judge. This enables the majority to find support in United States ex rel. Wissenfeld v. Wilkins, 2 Cir. 1960, 281 F.2d 707. I do not differ with the Wilkins’ rule on the facts present in Wilkins; I do not find the same or similar facts existing in this case, therefore, I do not think it controlling.
Without going so far as to say due process required the appointment of counsel in this case, the majority hold that the district court judge did not exercise “proper” discretion. In other words, that he had abused that discretion. And because, says the majority, there was this clear error of judgment, they reverse. I say such a ruling on the facts of this case takes away as a practical matter all discretion from the trial judge. I have always understood that the very purpose of the rule giving the trial judge discretion in such matters was that he had so much better opportunity than any appellate court to -scrutinize the demeanor and conduct of witnesses, and petitioners themselves.
The majority originally dismiss with two short sentences their attention to the motion filed by petitioner, shortly after trial, to reduce sentence. They say it was denied, and that the trial judge presided at that hearing, and on the present motion. They fail to note the same issue involved at this hearing was presented then; and that counsel of defendant’s own choice and hire was present and participated in the hearing on that issue. This present motion then, was a rehash of a matter previously heard; at which time petitioner had counsel and competent advice, and the issue had a fair hearing.
Despite the rehashing of an issue already heard and passed upon when petitioner was represented by counsel, and despite a careful and sympathetic hearing by an experienced and capable trial judge; despite the presence of and testimony by (a) the attorneys who had represented petitioner and his codefendant at the trial, (b) the Assistant United States Attorney in charge of the original prosecution, (c) the judge who sentenced petitioner, (d) and the three Deputy Marshals on whose testimony petitioner relied; despite the fact petitioner called every witness he desired to call; despite the fact petitioner was provided with transcripts of proceedings at the time of sentence and at the time of the hearing of the motion to reduce sentence, still petitioner produced no evidence that the alleged promise of a ten year sentence had been made him. The court below so found, and the majority agree.
But, state the majority, a chance remark by the trial judge, made on the motion to reduce sentence, raises several questions. They first “assume” that the Assistant United States Attorney knew *452in advance of the trial date who the sentencing judge was to be; they think it “unlikely” that an Assistant United States Attorney would be unaware of a judge’s practice in respect to asking of recommendations as to length of sentence; and based on these “facts” state it is “possible” there existed an illusory agreement on the part of the Assistant United States Attorney. This constitutes the “deceit” by which the majority invoke Walker v. Johnston, 1941, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830 and if the “promise” (found not to exist) was not intended to be kept (the evidence was that the Assistant United States Attorney did precisely what he stated he would do) then the majority rely on violation of due process, and the cases cited in note 15. Thus the majority are back to an alleged lack of due process, which they originally state they do not rely upon.
Appellant’s general contention is that his plea of guilty was obtained by promises and false representations made by appellee to the effect that if he pleaded guilty, he would receive a sentence not to exceed ten years. The record does not substantiate this contention. The testimony of all witnesses (including counsel who represented appellant when he pleaded guilty and when he was sentenced, as well as counsel for appellant’s codefendant) shows that the Assistant United States Attorney had not promised that he would recommend to the district court that a sentence not to exceed ten years should be imposed; only that he would, if asked, suggest ten years was satisfactory to the government. There was evidence appellant was told repeatedly and pointedly that appellee could not guarantee that the district court would ask for appellee’s recommendation. The record shows that appellant did not enter a plea of guilty in reliance on any promises made by appellee. Malone v. United States, 10 Cir. 1961, 295 F.2d 77. See also, Trimier v. United States, 8 Cir. 1961, 295 F.2d 237.1 The fact that an accused who pleads guilty receives a sentence more severe than he anticipated is not a ground for vacating or reducing the sentence. Verdon v. United States, 8 Cir. 1961, 296 F.2d 549.
The district court, in the proceeding on a motion to vacate sentence, did not err in determining that there was no coercion on the part of appellee to extract a plea of guilty from appellant. Williams v. United States, 9 Cir. 1961, 296 F.2d 216. See also, United States v. Jacek, 3 Cir. 1962, 298 F.2d 429.
The district court should not accept a plea of guilty without first determining that it is made voluntarily with an understanding of the nature of the charge and without promises made by the prosecution. Adkins v. United States, 8 Cir. 1962, 298 F.2d 842. See also, United States v. McNicholas, 4 Cir. 1962, 298 F.2d 914. This determination was made by the court below. Since in my judgment appellant has not substantiated his allegations of fact with any evidence, convincing or otherwise, the order entered by the district court was no abuse of discretion and should be affirmed. Cf.: Malone v. United States, 6 Cir. 1962, 299 F.2d 254, and Adkins v. United States, supra.
Appellant concedes that there is no constitutional right to representation by counsel in a proceeding instituted pursuant to Section 2255; he acknowledges that such a proceeding is civil rather than criminal. Brown v. Johnston, 9 Cir. 1937, 91 F.2d 370; Dorsey v. Gill, 1945, 80 U.S.App.D.C. 9, 148 F.2d 857. Consequently, whether or not counsel should be appointed in a Section 2255 proceeding rests within the sound discretion of the district court. Richardson v. United States, 10 Cir. 1952, 199 F.2d 333; see also, Clatterbuck v. United States, 1959, *453105 U.S.App.D.C. 295, 266 F.2d 893; Tubbs v. United States, 10 Cir. 1957, 249 F.2d 37; Vinson v. United States, 6 Cir. 1956, 235 F.2d 120.
The desirability of appointing counsel in these proceedings has, however, been recognized where complex issues of fact are involved. United States ex rel Wis-senfeld v. Wilkins, 2 Cir. 1960, 281 F.2d 707. Carnley v. Cochran, 1962, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. Appellant contends that the factual issues here involved were so complex that being without the aid of appointed counsel reduced his hearing to an ex parte proceeding. No fair reader of the transcript of the proceedings had below could characterize it as such.
Because I cannot agree with the majority on the issue they rule controlling (and I do not), I am required to consider, as the majority had no need to do, the remaining points raised by petitioner.
WAS IT ERROR FOR THE DISTRICT COURT JUDGE TO TAKE THE STAND ?
In the course of the hearing below, appellant called the sentencing judge — who also presided at the hearing on the instant motion — as a witness. The calling of the judge who sentenced appellant and who was presiding over the hearing on appellant’s motion was, contends appellant, proper; citing Davis v. United States, 8 Cir. 1954, 210 F.2d 118, as authority. It is not in point; and does not so hold. But, urges appellant, it was error for the judge, once called (and to whom appellant contends he addressed a proper question2 which required an answer) to perform the dual function of witness and judge, as he was when he sustained appellee’s objection to the question addressed to him by appellant.
Appellant also relies on the cases, inter alia, of In re Murchison, 1955, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942, and United States v. Halley, 2 Cir. 1957, 240 F.2d 418. In the Murchison case the Supreme Court said that where a judge himself may be a material witness, he should not sit as trial judge; United States v. Halley is to the same effect.
Perhaps, if appellant had given the judge notice that he intended to call him as a witness, more desirable arrangements could have been made. But the historical purpose of the passage of Section 2255 was to permit the same judge who had sentenced the prisoner to pass on any petition alleging irregularity in that sentencing. Any error that could be attached to the trial judge acting both as presiding judge and witness could not have been prejudicial, particularly here where but one question was asked of the judge, and none answered.
WAS APPELLANT ENTITLED TO SEE THE PRESENTENCE INVESTIGATION REPORT?
Appellant contends, however, that production and admission of the presentence investigation report would have provided good evidence of whether he was or was not made the alleged promise by appel-lee. In appellant’s own words:
“In the instant case the government attorney made certain promises as to the sentence and these promises were contingent upon a presentence investigation report being made. As the report was made it was important to the allegation from the standpoint that a recommendation of 10 years was made or that either no recommendation was made or one for a harsh sentence. If the recommendation for 10 years was made substance could be credited to the appellant’s allegation of a promise. On the other hand, if no recommendation as to the sentence was made or one for a severe sentence, then either the government attorney made misrepresentations to the appellant or the appellant’s allegations are completely false.”
*454But, here, the fact that there was no “promise” as alleged by appellant was conclusively established. Appellant’s entire argument on this third point is premised upon his conclusion that the alleged “promise” was made. Regardless of what the presentence investigation report may show, it was the recommendation of the probation officer, and could not impeach any witness who testified on this hearing. If a recommendation for a light sentence was contained in the report, it would only substantiate the fact that appellant was not misled and that the United States Attorney did just as he testified in the instant hearing. If a request for a maximum sentence was contained in the report, it still would not impeach the United States Attorney’s testimony at the instant hearing, viz, that government counsel would recommend a light sentence only if his recommendation was asked for by the court during sentencing.
But in any event, appellant’s contentions were answered by the tenth circuit in the case of Hoover v. United States, 10 Cir. 1959, 268 F.2d 787, where the court held, at page 790, that use of the ex parte report was not violative of due process.
Though there may be a divergence of opinion concerning the propriety of the disclosure of presentence investigation reports after a plea or verdict of guilty has been entered, the better view seems to be that expressed in United States v. Durham,3 D.C. 1960, 181 F.Supp. 503 certiorari denied, 364 U.S. 854, 81 S.Ct. 83, 5 L.Ed.2d 77; and in United States v. Greathouse,4 D.C. Ala. 1960, 188 F.Supp. 765, and in Hoover v. United States, supra. And see Williams v. New York, 1949, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337.
Appellant’s reliance upon Section 3500 of Title 18 United States Code, is misplaced. The purpose of Section 3500 is not that which appellant here contends. Campbell v. United States, 1 Cir. 1961, 296 F.2d 527.
Finding no error, I would affirm.
. Where it is said that representations made to an accused by a Deputy Marshal and his court appointed counsel that he would not be sentenced to more than three years for an alleged offense did not constitute a legal taking of advantage or processive unfairness against the accused and did not require that his conviction and five year sentence be set aside.
. “Judge East, in a presentence report in the case of United States v. Dillon, were you given the impression of any maximum sentence reflected from the District [sic, United States] Attorney’s Office?”
. “The defendant moves for an opportunity to inspect the Probation Officer’s report of the presentence investigation. This motion is denied.
“It is not the practice to permit the defendant or his counsel or anyone else to inspect reports of presentence investigations. Such reports are treated as confidential documents. They are not public records. The reason is obvious. Such reports, in order to be helpful to the Court, must of necessity contain a considerable amount of information that may be obtained, on occasion, in confidence. So, too, the Probation Officer must feel free to make comments and suggestions that may prove to be of value to the Court.
“Rules of evidence are not applicable to the imposition of sentence. In fact, it has been the traditional practice, even before the system of presentence investigations was introduced, for the Court to receive information in confidence which the Court might or might not disclose to the defense, as the Court saw fit, that might bear upon the question of what sentence should be imposed. The custom of treating reports as confidential documents is merely a continuation of the prior practice. If these reports were made public and were available to counsel as a matter of right, I am sure that their value would be much reduced, because a great deal of information now generally contained in them would not be available.” (181 F.Supp. at 503-504.)
. “This Court is of the opinion that the motion of the United States to quash the subpoena duces tecum directed to James Elmo Turner, Chief U. S. Probation Officer for this district, should be granted. To permit the probation officer to be subpoenaed and to produce a pre-sentence report for use by a defendant would, in the opinion of this Court, seriously hamper and handicap the probation investigation system in this district. When the probation officer makes the investigation that forms the basis for a pre-sentence report, he is acting as an arm of the Court and as an investigator for the Judge of the Court. The pre-sentence report is not a public record; it is a confidential report for the use by the Judge of the Court in his effort to determine what a fair sentence should be.” (188 F.Supp. at 766.)