(dissenting) :
I dissent.
The majority now require the state court, or perhaps the federal court in addition, to inquire into the voluntariness of a plea of guilty entered by Williams in the Bronx County Court in March 1956 to robbery in the second degree in settlement of an indictment which charged 5 felonies including rape and robbery. The trial court must now also inquire into the voluntariness of the confession which Williams claims he made and which he also claims was the inducing cause of his plea of guilty.
For the reasons set forth in my dissenting opinion in United States ex rel. Ross v. McMann, 409 F.2d at pages 1029 to 1086, filed February 26, 1969, I would not require a trial court to inquire into the voluntariness of a plea of guilty entered in a state court prior to the Supreme Court decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205 (1964), where the claim is that the plea was induced by an involuntary confession.
In addition it seems to me that the claims of Williams are insubstantial on their face. It seems highly unlikely on this record that the only evidence against Williams could have been his own confession, as he now claims. The charges in the indictment included holding up one Mabel Cummings with a toy pistol, raping her and robbing her. The record discloses no allegations which make it believable that Mabel Cummings could not and would not have testified that Williams was her assailant. Such testimony would usually be sufficient to convict.
Nor is Williams’ claim that he had alibi evidence which would have shown that he was out of the state at the time any more believable, as he gives no particulars whatever with respect to such evidence and to his assertion that he advised his attorney of such an alibi and that his attorney failed do do anything about it.
Williams’ petition is unbelievable in still another respect — his claim that his lawyer led him into thinking he was pleading to a misdemeanor when he pleaded to robbery in the second degree. This claim is especially incredible in light of the facts that Williams was a second felony offender and that he failed to raise the claim for 8 years.
Of course the state has not yet had reason to refute these claims Williams makes because at the time Judge Croake passed upon them and dismissed the petition without hearing this court had not yet announced its opinion in United States ex rel. Ross v. McMann and related cases. I point out the insubstantiality- of the claims not only to emphasize that, in my opinion, there was no need to make any answer to Williams’ claims, but also because it seems to me that even under the holding of the majority, and what the majority members of this court said in United States ex rel. Ross v. McMann, it might still be possible for the state to present record evidence of such nature that the petition could be acted upon and dismissed without the calling of any witnesses.
I also refer to these glaring defects in Williams’ petition to emphasize the point I made in my dissenting opinion in Ross that New York State courts, and subsequently our own federal courts, will be overburdened by the requirement that they spend valuable time in listening to insubstantial claims regarding events so far in the past that memories and records will be so imperfect and incomplete that the court can do little but speculate. Undoubtedly trial judges who must listen to such claims will be able, *662readily and speedily in the great majority of cases, to determine that the claims are incredible and almost entirely an exercise in imagination prompted by the reading of opinions, such as those in Ross, which suggests facts justifying relief.
I would affirm the judgment of the district court which denied the petition without a hearing.