(concurring).
Because I am concerned that a violation of petitioner’s rights might have occurred and that petitioner might not have been fully heard on his claim, I concur in the result reached by the majority. It should be noted, however, that in my judgment by ordering the remand in this case, we have reached what would appear to be the outermost limits of habeas corpus.
I am comforted somewhat in my concurrence, because the question posed by the appeal is not whether we should grant the writ of habeas corpus and set Davis free but whether the state court *1005records were adequate to justify the District Court’s denial of the petition without holding an evidentiary hearing.
In 1947, after three days of trial, Davis changed his plea to the charge of murder from not guilty to non vult. For the purpose of the present proceeding, non vult is equivalent to a plea of guilty. In his petitions for habeas corpus in both the state and the federal courts, Davis sought to attack his plea as involuntary. He alleged first that the plea was motivated by a confession coerced from him by the police, and second that the plea was “the direct result of undue influence by the trial judge and assigned counsel.”
In dealing with Davis’ two averments, we must be guided by the Supreme Court’s decisions in the McMann trilogy.1 McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), held that when on advice of competent counsel a defendant pleads guilty in a state prosecution, he waives any objections he might have to an allegedly coerced confession. Id. 774, 90 S.Ct. 1441. See United States ex rel. Johnson v. Russell, 444 F.2d 1177 (3rd Cir., July 7, 1971). Therefore, Davis’ first claim, standing alone, clearly gives rise to no federal relief.
However, the Supreme Court, in Mc-Mann, was also confronted with claims by the habeas petitioners concerning the competence of their counsel, based on grounds other than the arguably bad advice of counsel that the confessions would be admissible at trial. With regard to these claims, the Supreme Court said (397 U.S. at 772, 774, 90 S.Ct. at 1449, 1450, 25 L.Ed.2d 763):
“. . .a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney. For the respondents successfully to claim relief based on Jackson v. Denno [378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908] each must demonstrate gross error on the part of counsel when he recommended that the defendant plead guilty instead of going to trial and challenging the New York procedures for determining the admissibility of confessions.
“It is no denigration of the right to trial to hold that when the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his or his attorney’s assessment of the law and facts. Although he might have pleaded differently had later decided cases then been the law, he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.”
Thus, in the absence of a state record sufficient to answer the charge of “serious derelictions on the part of counsel,” it is necessary for a district court to hold an evidentiary hearing on this point.
Petitioner does allege that his court-appointed counsel at the 1947 trial colluded with the trial judge to influence Davis to plead guilty. If, based on the state court record, reply to this averment could be in the negative, the judgment of the District Court should be affirmed. Unfortunately, the state court record is inadequate, because, when, at the second state habeas hearing, Davis’ court-appointed counsel elicited testimony from Davis’ trial counsel, Davis was not present, as required by New Jersey law.2
*1006It seems incongruous indeed that twenty-five years after the entry of his plea of non vult and seven years after the second habeas hearing, Davis should now be able to take advantage of the admission into evidence of testimony which his own lawyer insisted upon presenting. The transcript of the second habeas hearing contains the following significant exchange:
“The Court: Very well. Mr. Apple-gate.
“Mr. Evans: May I call Mr. Juska [Davis’ original trial counsel] as to one question, if your Honor please, as to the plea at the time of the trial. This as to the weight that was given to the confession by the defendant himself, and by Mr. Juska at the time of the confession.
“The Court: I don’t believe so, Mr. Evans. I am hesitating just a moment. It seems to me, as I recall the rule, if any factual matter is to be argued, it must be in the presence-— the defendant has a right to be present. I hadn’t anticipated anything of that nature to be contemplated.
“Mr. Evans: If your Honor please, if I may refresh your memory, with all due respect, I conferred with your Honor in Chambers several weeks ago, at which time you instructed me to have Mr. Juska present for that specific question.
“The Court: All right, call him.”
The record gives no indication of the reason for Davis’ non-attendance at the hearing. It is not possible, therefore, for us to determine whether Davis, in any way, waived his right to be present.
Under these circumstances, and because Davis was not present to examine Mr. Juska, his first court-appointed lawyer, or to rebut Mr. Juska’s testimony, I reluctantly agree with the majority that Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) requires that Davis now be given the opportunity to do so.
It is only by giving petitioner the benefit of the doubt in each of these instances that he is able to avail himself of a federal forum. Thus, because of an exception to the rule of McMann v. Richardson, supra, Davis has avoided summary denial of his petition, and because of a technicality in New Jersey law he is entitled to a hearing in federal court during which he will be given the opportunity to prove what appears to be a highly unlikely circumstance.
However, rather than the relief which is inherent in the majority opinion, I would enter an order (1) limiting the hearing on remand to the taking of the testimony, with Davis present, of Mr. Juska, and then the testimony of Davis in rebuttal; (2) providing that if Mr. Jus-ka’s testimony and Davis’ rebuttal would not support a finding that Mr. Juska was incompetent, such failure to end the new hearing and result in a dismissal of the petition; and (3) making it clear that the burden of proof is on Davis. United States ex rel. Grays v. Rundle. 428 F.2d 1401 (3rd Cir. 1970).
. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1969); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1969).
. NJR 3:22-10. Although Mr. Juska’s testimony was probably outside Davis’ personal knowledge, there may be a sufficient question on this point to afford Davis an opportunity to be present when such testimony is adduced.