(dissenting) :
In my original dissent, 408 F.2d at 661, I noted that Williams’ claim that he had alibi evidence which would have shown that he was out of state at the time of the crime, and that he advised his attorney of such an alibi, was unsupported by particulars and thus should not be entertained. I adhere to that view today.
In Williams’ original habeas-corpus petition in the district court (which fol*747lowed six coram nobis proceedings in the state courts), he included an affidavit and a memorandum of law. These papers amounted to more than ten pages of closely-spaced, typed, legal argument, and not once was Williams’ alibi defense mentioned. In a footnote he noted that in 1962 he had moved in state court to reverse his conviction on the grounds that his attorney had advised him that the charge to which he was pleading guilty was a misdemeanor, when in fact it was a felony. This is the only reference possibly applicable to the issue of competency of counsel.
To his papers Williams affixed a brief filed on his behalf by the Legal Aid Society in the Appellate Division of the Supreme Court of New York, appealing from an order rendered July 21, 1964 denying Williams’ motion for writ of error coram nobis. One of the arguments therein was that Williams was entitled to a hearing to determine the issue of inadequate counsel. As facts in support of this position, the brief set out the following :
Appellant asserts he was not in the jurisdiction at the time of the alleged crime. As such, he could not be guilty of the crime charged; yet, knowing this fact counsel advised appellant to plead guilty and compounded this reprehensible act by advising appellant he was pleading to a misdemeanor.
I confess I do not quite comprehend the relevance of this argument made in a brief from a former action appended to a habeas corpus petition attacking a guilty plea through a challenge to an allegedly coerced confession. Even if the claim of incompetent counsel is somehow properly made, I nevertheless have no doubt whatsoever that it should be dismissed summarily. Williams does not tell us where he claims he was at the time of the crime: he alleges only that he was out of the state. Nor does he suggest what if any evidence there might be to support his alibi claim. He presents nothing but conclusory assertions that he had an alibi which his counsel ignored, and that his counsel misadvised him as to the degree of the crime to which he was pleading guilty. (Williams has had a long-standing familiarity with the courts: I find it unlikely in the extreme that, arrested for rape and robbery and entering a plea to second degree robbery, Williams was under the misapprehension that he was pleading to a misdemeanor.)
Many defendants subsequent to conviction harbor the opinion that their counsel was incompetent. The very least a federal court should require are specific factual allegations which show such egregious and inexcusable bad judgment and actions that there is reason to believe that counsel was so grossly incompetent as to deprive petitioner of that assistance for his defense which due process requires.