I dissent. Most of Brown’s contentions are clearly without merit, as my brother Barnes’ opinion demonstrates. But there is one as to which Brown should be permitted to amend, and, if he can allege sufficient facts, to have a hearing. That is his claim that he did not put the life of the person robbed in jeopardy by the use of a dangerous weapon. Unless he did that, he is not guilty of the aggravated offense of which he was convicted, and he has already served six years more than the ten-year maximum prescribed for the lesser offense of which he is admittedly guilty. Thus this is one of those rare cases in which it appears that the petitioner may not be guilty, rather than that there was some defect in the proceedings that may require a new trial even though he be guilty. When such a claim is advanced, I think that it should not be summarily disposed of, without a hearing, unless the record does indeed “conclusively show that the prisoner is entitled to no relief.” (28 U.S.C. § 2255; emphasis added). Here, I do not find the record conclusive.
Brown asserts that he did not have an “intelligent understanding” because:
“(a) The evidence in this case showed only a violation of the simple offense of robbery by force and not the aggravated offense of putting life in danger, or, assault.
(b) Defendant on March 14, 1951, entered a plea of guilty with a misunderstanding of the nature of the offense founded on the erroneous definition given the defendants and the Court by counsel for the Government.”
No facts whatever are stated in support of these allegations. Moreover, the transcript of the sentencing hearing shows that the court inquired whether defendants, including Brown, understood that they could plead “partially guilty to a portion of this charge? They might deny putting the life in jeopardy by the POWER [sic] of a dangerous weapon.” Nevertheless, Brown stood on his plea, fully understanding that it required the court to impose a 25-year sentence. And the transcript contains nothing indicating that government counsel gave the court any definition of the charge. If this were all, I would be disposed to affirm.
But there is more. The court’s inquiry that I have just quoted occurred at the time of sentencing, the plea having been taken a few days before. It was prompted by the following colloquy between the court and Brown’s counsel:
“MR. PRATT: If your Honor please, there isn’t any legal ground why sentence should not be pronounced but I would like to call your Honor’s [sic] to the fact that the indictment charges that they assaulted the postmistress, which is technically true, but they didn’t actually do any physical violence to her; the assault was wholly by means of a revolver WHICH COULD NOT BE FIRED ( ?)
THE COURT: There is no question but what they are pleading guilty to the charge, is there ?
MR. PRATT: No, there isn’t, your Honor. I just wanted to call your Honor’s attention to the fact put the charge ‘assault,’ that there wasn’t any language ‘physical assault.’
THE COURT: That wouldn’t affect the situation any, would it ?
MR. PRATT: No, I don’t think it would.
THE COURT: They are pleading guilty to the charge of putting her life in jeopardy by the USE of a dangerous weapon.
MR. PRATT: Yes, that is right, your Honor.
THE COURT: And that is the portion of the charge which makes man*882datory a 25 year sentence of imprisonment.
MR. PRATT: I understand that. They do, too, your Honor.”
The transcript was written up from the reporter’s notes, apparently by someone else, and may well not be entirely accurate. The capitalized language and question mark indicate doubt on the part of the person writing up the transcript. Nevertheless, this colloquy does indicate to me that there may have been confusion in the minds of all parties as to the meaning of the phrase “puts his life in jeopardy by the use of a dangerous weapon.”
As is shown in the careful opinion in LaClair v. United States, N.D. Ind., 1965, 241 F.Supp. 819, 824-826, the law as to its meaning was in a state of some confusion in 1951, when Brown, pleaded guilty. The trial judge’s comment “That wouldn’t affect the situation any, would it?” can be read as meaning that “an objective state of danger” is not required. Yet since 1951, it has become settled in this and other circuits that an objective state of danger must exist. Wagner v. United States, 9 Cir., 1959, 264 F.2d 524, 530; United States v. Donovan, 2 Cir., 1957, 242 F.2d 61, 63; Dorrough v. United States, 5 Cir., 1967, 385 F.2d 887, 893-894; Smith v. United States, 5 Cir., 1960, 284 F.2d 789, 791-792. See also the following cases construing similar language in 18 U.S.C. § 2113(d), dealing with bank robbery: Wilcox v. United States, 9 Cir., 1967, 381 F.2d 450, 451; Smith v. United States, 9 Cir., 1962, 309 F.2d 164; United States v. Roach, 3 Cir., 1963, 321 F.2d 1, 5; Meyers v. United States, 5 Cir., 1941, 116 F.2d 601, 603 (predecessor section 588b(b) (a)); Wheeler v. United States, 8 Cir., 1963, 317 F.2d 615, 618.
If in fact the gun could not be fired, either because it was not loaded or for some other reason, and if in fact it was not used in such a manner, even though it could not be fired, as to put the life of the postmistress in an objective state of danger, then Brown is not guilty of the aggravated offense.
I would vacate the order and remand with directions to the trial court (1) to permit Brown to allege, in detail and under oath, so that he would be subject to the penalties of perjury, exactly what happened at the robbery, so far as use of the gun is concerned, and, (2) if such allegations are sufficient, to hold a hearing and grant such relief, if any, as may be proper. Naturally, I express no opinion as to the veracity of Brown’s claims.