(dissenting).
The 1970 decisions of the Supreme Court in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785, teach that the normal area of permissible collateral attack upon a criminal conviction is greatly narrowed when the case is one in which the accused has pleaded guilty. I read those cases as holding that if a guilty plea has been a voluntary act and has been entered with comprehension of the then existing relevant circumstances, it is invulnerable to collateral attack, even on constitutional grounds. Thus, in my view, the decisive question here is whether the plea in this ease, unquestionably voluntary, was made knowingly and with comprehension within the meaning of the above cited decisions.
At the time of the guilty plea, neither the accused nor his counsel could anticipate that in a future case1 the Supreme Court would decide, contrary to professional understanding before that ruling, that one could successfully defend a criminal charge of transporting marijuana without the required transfer tax having been paid, by asserting that he could not have paid the tax without self-incrimination. Neither could it be anticipated that any such ruling would be given retrospective effect.2
Because the accused could not prophetically anticipate this future sequence of legal rulings, this court now holds that his guilty plea was not entered with knowledge and comprehension of relevant circumstances. It is with this restrictive interpretation of the invulnerability of guilty pleas as announced in the Brady, McMann and Parker cases that I disagree.
I think it is inadequate knowledge and comprehension of the situation at the time of pleading, and that alone, that now permits a guilty plea to be attacked collaterally. In the Brady opinion, the Supreme Court rationalized its decision by saying that “a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.” 397 U.S. at 757, 90 S.Ct. at 1473 (italics added). That language, used in a case where a plea was entered without anticipation of a future constitutional holding that would have removed the impelling reason for the plea, seems to cover the circumstances of the present ease. I think we are bound by it, though we may wish that the rule were otherwise.
For this reason, I dissent.
ALDISERT, Circuit Judge, joins in this dissenting opinion.
. Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.
. The majority opinion candidly characterizes the question whether Leary should be given retrospective application as “far from clear” even now.