(dissenting).
The issue squarely presented by this appeal is whether knowledge and understanding by a criminal defendant that he will be ineligible for parole are constitutionally required for a plea of guilty to a crime for which parole is not available. Cases of both the Supreme Court of the United States and this Court compel an affirmative answer. I respectfully dissent.
A plea of guilty constitutes a waiver of several constitutional rights and consequently must be made voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).1 In particular, to be voluntary and intelligent, a “plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences." Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), quoting Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927) (emphasis added). See also Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Just over a year ago, the Supreme Court reemphasized that a guilty plea must be voluntary and intelligent in Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). More specifically, “[the defendant] must be informed of the consequences of his plea . . ..” 426 U.S. at 650, 96 S.Ct. at 2260 (White, J., concurring) (emphasis added). It was stated that Boy-kin, Machibroda and Kercheval “set forth a three-pronged test: The plea of guilty must be made voluntarily, it must be made after proper advice, and it must be made with full understanding of the consequences." 426 U.S. at 653, 96 S.Ct. at 2261 (Rehnquist, J., dissenting) (emphasis added).
Against this background of general principles of federal constitutional law, the facts of this case are governed by Harris v. United States, 426 F.2d 99 (6th Cir. 1970). See also United States v. Wolak, 510 F.2d 164 (6th Cir. 1975), following Harris.2 In Harris, the defendant entered a plea of guilty to an offense for which ineligibility for parole was a statutory consequence. This Court noted then that four other circuits had “held that ineligibility for parole is a *consequence’ of a plea of guilty of which a defendant must be apprised to per.mit a finding that his proffered plea is voluntary." 426 F.2d at 100 (emphasis added). This Court expressly chose to “align” itself with those circuits. Id. at 101. We stated that
[i]neligibility for parole consideration, like ineligibility for a concurrent sentence, affects the length of incarceration. Accordingly, we conclude that a defendant indicted for [an] offense does not voluntarily plead guilty with knowledge of the consequences of his plea if he is unaware of his ineligibility for parole. Id. at 101 (footnote omitted) (emphasis added).
*802While the appeal in Harris was couched in terms of a violation of Federal Rule of Criminal Procedure 11, the above language demonstrates that Rule 11 was not necessary to the result. We held that the plea was not voluntary and voluntariness is the constitutional standard. We held that the plea was made without knowledge of its consequences, which also expresses the constitutional standard. The use of the term “consequences” may have been inspired by its existence in the pre-1975 amendment version of Rule 11,3 but there is no reason to believe that “consequences” means anything different in a Rule 11 context than it does in a constitutional context. The pre-1975 amendment version of Rule 11 simply expressed the constitutional standard by requiring that a defendant understand “the consequences of the plea.” Thus, lack of knowledge of ineligibility for parole makes a guilty plea invalid under the standards of both Rule 11 and the Constitution.4
This demonstrates the flaw in the logic employed by the majority. The majority correctly reads Harris to speak in terms of Rule 11. They also correctly note that Rule 11 does not apply in state courts, citing Roddy v. Black, 516 F.2d 1380, 1383 (6th Cir.), cert. den. 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975), and Lawrence v. Russell, 430 F.2d 718, 721 (6th Cir. 1970), cert. den. 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed. 823 (1971). But it does not follow from these two propositions, as the majority concludes, that the Harris result does not apply in state courts because, while it relied on Rule 11, it also expressed the federal constitutional standard. Roddy states only that the “precise terms of Rule 11 are not constitutionally applicable to the state courts.” 516 F.2d at 1383 (emphasis added). See also Lawrence, 430 F.2d at 721, to the same effect. Constitutional provisions apply fully in state courts and are not excepted by also being embodied in Rule ll.5
The importance of parole to a criminal defendant cannot be denied. Parole was held to be a significant liberty interest deserving the protections of due process in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The reason is that it “affects the length of incarceration.” Harris, supra, 426 F.2d at 101. Parole is so common that the average defendant surely expects it to be available to him.6 Moody v. United States, 469 F.2d 705, 708 (8th Cir. 1972); Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969). The statement of the District Court, adopted by the majority, that Appellant had no reasonable basis for assuming he would be eligible for parole cannot be true. Since expectation of parole eligibility is so common, in the rare cases where it is unavailable, it is necessary to inform the defendant of this fact in order for him to fully understand the consequences of his plea.
The proper course in this case would normally be to remand to the District Court for a hearing to determine whether Appellant actually understood his ineligibility for parole at the time he entered his plea.7 The *803District Court already held such a hearing, however, and it failed to resolve this issue. Instead, it concluded that whether or not Appellant actually held such a belief was irrelevant, basing its denial of relief on its conclusion that such a belief would be unreasonable. Appellant testified that he was unaware of his ineligibility for parole. While that alone is far short of establishing that fact, there is no evidence to the contrary. The record of the plea hearing is silent on the point and the sentencing judge testified that if it was not in the plea hearing record then he probably did not advise Appellant of his ineligibility. Defense counsel could not recall informing Appellant of his ineligibility. Thus, the Government could not conceivably meet its burden of showing voluntariness,8 making remand unnecessary. I would reverse and order the granting of the writ of habeas corpus.9
. The majority distinguishes the facts of this case from those of Boykin. Such an exercise is irrelevant. The importance of Boykin stems not from its peculiar facts but from the constitutional principles set forth therein.
. This is the overwhelming majority result among the circuits. See 8 A.L.R.Fed. 760.
. Before a 1975 amendment, Rule 11 read in part as follows:
The court . . shall not accept [a plea of guilty] without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.
. In United States v. Wolak, 510 F.2d 164, 166 (6th Cir. 1975), this Court used the word “consequences” twice in the same paragraph, once referring to Harris and once referring to the constitutional standard of voluntariness expressed in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1969). This demonstrates that “consequences” means the same thing in both the Rule 11 and constitutional contexts, or, alternatively, that Harris rested upon constitutional principles.
. “The substance of the inquiry [required in state court to pass constitutional scrutiny] will, of course, be analogous to a Rule 11 colloquy.” Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir. 1972).
. Michigan allows for parole in all cases where an indeterminate sentence is meted out, including a sentence of a term of years to life. Mich. Comp.L.Ann. § 791.234. Thus, parole is generally available in Michigan.
. In the case of a plea entered subsequent to Boykin, that understanding must appear affirmatively on the record. Since this plea oc*803curred before the decision in Boykin, Appellant’s understanding did not necessarily have to be laid out on the record. See Hendron v. Cowan, 532 F.2d 1081, 1083 (6th Cir. 1976), which the majority cites for the proposition that Boykin will not be applied retroactively. While Hendron does contain language to that effect, the cases cited for that proposition, Scranton v. Whealon, 514 F.2d 99, 101 (6th Cir. 1975), and Lawrence v. Russell, 430 F.2d 718, 720-21 (6th Cir. 1970), do not so hold. Scranton and Lawrence held only that Boykin did not require Rule 11 to be applied retroactively. While I consider the retroactivity of Boykin unsettled, it is unnecessary to decide that issue here. Even under Kercheval, decided in 1927, and Machibroda, decided in 1962, a defendant had to fully understand the consequences of his plea, which cannot be demonstrated in this case even by going outside of the record. See footnote 8 and accompanying text, infra.
. “The burden as to voluntariness is on the Government.” Harris, supra, 426 F.2d at 101.
. This result would not open the floodgates to similar habeas petitions. Since parole is so widely available, there can be only relatively few people presently incarcerated after entering a plea of guilty to an offense for which parole was not available with the defendant being unaware of that fact. This case, for example, involved a plea of guilty to the most serious offense of which Appellant could have been convicted after trial, i. e., first degree murder. The trial judge himself was surprised that someone would plead guilty to the most serious offense possible and he indicated that he had never seen such a plea before.