DISSENTING OPINION OF
LEVINSON, J.I dissent.
This appeal reaches us from the denial by the circuit court of petitioner Russell’s application for a writ of habeas corpus. The petitioner, a prisoner incarcerated in the federal penitentiary at Atlanta, Georgia, raises essentially two issues: (1) Is the availability of habeas corpus relief in a court of this state contingent upon the possibility of immediate release from confinement? (2) If such relief is not so contingent, is the petitioner entitled to an evidentiary hearing, an opportunity to amend his petition, and the assistance of counsel, pursuant to his claim that his confinement arising out of two state court convictions is in violation of *286his rights under the due process clause of the fourteenth amendment of the Federal Constitution? Specifically, he alleges that his pleas of guilty and nolo contendere to charges of first degree murder and second degree robbery were not entered voluntarily and understandingly and that, prior to his abandonment of pleas of not guilty, a coerced confession was extracted from him by the police.
In 1964, the petitioner was charged with first degree murder and second degree robbery, and he was provided with court-appointed counsel. He pleaded not guilty to both charges and demanded a jury trial on July 2, 1964. After a series of postponements, he next appeared before a circuit court judge on May 7, 1965, at which time his counsel indicated that the petitioner wished to withdraw his previous pleas and plead anew. In response to the twice-uttered incantation, “William Lino Russell, how do you plead?” the petitioner entered pleas of guilty and nolo contendere, respectively, to the murder and robbery charges. He was sentenced to the mandatory term of life imprisonment without parole1 on the former count and a term of twenty years on the latter, the sentence to run concurrently with any he was then serving.2 The petitioner was subsequently transferred from the Hawaii State Prison to the federal penitentiary at McNeill Island, Washington, and thence to the federal institution at Atlanta, Georgia. He is, in addition, being incarcerated for three previous state convictions involving sentences which have not yet expired. The petitioner does not challenge these convictions. In June, 1968, the petitioner was also convicted by a federal district court of a federal offense for which he was sentenced to 15 years imprisonment, to be served consecutively with the life sentence. This, too, he does not challenge.
On May 7, 1969, the petitioner filed an application in the *287circuit court for a writ of habeas corpus and for leave to proceed in forma pauperis. In his application, the petitioner alleged, somewhat ambiguously, that during his stay at the Honolulu police station, prior to his transfer to the Hawaii State Prison on June 8, 1964, he was beaten about the head and shoulders by the police, in an effort to obtain a confession from him. He further alleged that during his incarceration at the Hawaii State Prison he had had access to barbiturates, and that, for a period surrounding his entry of the pleas of guilty and nolo contendere, he had in fact taken daily doses of seconal and was consequently “non compos mentis” at the time the pleas were entered. Thus, he alleged that his guilty and nolo contendere pleas were entered in contravention of H.R.Cr.P., Rule 11, requiring that a court shall not accept a plea that is not made voluntarily with understanding of the nature of the charges.3 Invoking H.R.Cr.P., Rule 32(d)4, the petitioner requested that the court permit him to withdraw his guilty pleas as to both counts. The petitioner concluded by reminding the court that “Applicant is not an attorney” and by asking “the Court to overlook any mistakes in this application.” The petition was accompanied by an affidavit in which the petitioner prayed for a hearing whereby he could prove his allegations, being unable to obtain affidavits from witnesses at the Hawaii State Prison “for lack of correspondence.” In a subsequent Motion for Subpoenas, filed October 2, 1969, the *288petitioner named the individuals without whose testimony “petitioner cannot safely prove his allegations.”5 A Memorandum in Opposition to the petitioner’s application was filed by the State Attorney General on November 17, 1969; it contained prison records which indicated that the petitioner had been segregated from the general inmate population at the Hawaii State Prison and that “[tjhere is nothing in our records or elsewhere that shows he was under the influence of drugs.”
On July 2, 1970, a circuit court judge denied the petitioner’s application for a writ of habeas corpus. The court’s order rested upon two grounds, the first being that the impossibility of immediate release from custody on account of another undisputed conviction precluded the petitioner from habeas corpus relief, regardless of the validity of his claims.6 Second, the court held that “[tjhere is nothing in the record to support [the petitioner’s] allegation that at the time of pleas he did not understand the nature of the charges or did not make the pleas voluntarily” and that “[wjhen petitioner pleaded guilty, he waived his right to question the voluntariness of the confession.”
The petitioner perfected his appeal pursuant to HRS § 602-5 and H.R.C.P. Rules 73 and 81(f). He prays that the lower court’s denial of his application be reversed and that the case be remanded with instructions to appoint counsel, allow amendment of the petition, and hold a full evidentiary hearing. I conclude that the petitioner is entitled to the relief he seeks.
I. HABEAS CORPUS AND THE IMMEDIATE RELEASE RULE
The respondent insists that it is the law of the State of *289Hawaii “that a habeas corpus petitioner who is incarcerated as a result of unchallenged convictions is properly confined and entitled to no relief.”7 In other words, the respondent argues that the State of Hawaii adheres to the “immediate release rule,” of which McNally v. Hill, 293 U.S. 131 (1934), was the progenitor. The respondent is incorrect. The United States Supreme Court has recently overruled McNally and rejected the applicability of the immediate release rule to petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2241. Peyton v. Rowe, 391 U.S. 54 (1968); Walker v. Wainwright, 390 U.S. 335 (1968). In Walker, the Court declared that:
Whatever its other functions, the great and central office of the writ of habeas corpus is to test the legality of a prisoner’s current detention. The Petitioner is now serving a life sentence imposed pursuant to a conviction for murder. If, as he contends, that conviction was obtained in violation of the Constitution, then his confinement is unlawful. It is immaterial that another prison term might still await him even if he should successfully establish the unconstitutionality of his present imprisonment.
Walker, supra at 336-37. Furthermore, the rationale of Walker v. Wainwright and Peyton v. Rowe, originally applied to prisoners serving consecutive sentences arising out of state convictions, has been extended to consecutive state-federal sentences, Desmond v. U.S. Board of Parole, 397 F.2d 386 (1st Cir. 1968), cert. denied, 393 U.S. 919 (1968), and to concurrent sentences, where the petitioner, even if successful, would not be entitled to immediate release. Imbler v. Oliver, 397 F.2d 277 (9th Cir. 1968); Lydy v. Beto, 399 F.2d 59 (5th Cir. 1968); Rhodus v. Patterson, 404 F.2d 890 (10th Cir. 1968); Walker v. Wheeler, 411 F.2d 468 (6th Cir. 1969).
Walker v. Wainwright and Peyton v. Rowe involved the *290availability of habeas corpus relief under 28 U.S.C. §§ 2241 et seq. to petitioners not entitled to immediate release from confinement notwithstanding their valid claims. Nevertheless, the policies articulated by the United States Supreme Court are no less forceful or persuasive in relation to our habeas corpus statute, HRS ch. 660. Strict adherence to the immediate release rule, whether by a state or federal court,
can harm both the prisoner and the State and lessens the probability that final disposition of the case will do substantial justice. . . . [I] t undermines the character of the writ of habeas corpus as the instrument for resolving fact issues not adequately developed in the original proceedings. . . . [I]t in many instances extends without practical justification the time a prisoner entitled to release must remain in confinement.
Peyton, supra at 62-64. Not only in federal courts do memories dim and witnesses die. Even in Hawaii, the bringing of an action in a state court after the lapse of many years cannot resurrect crucial testimony on disputed issues of fact.
The respondent’s reliance upon Engstrom v. Naauao, 51 Haw. 318, 459 P.2d 376 (1969), is misplaced. We did not hold in Engstrom that the petitioner’s proper confinement for unchallenged convictions precluded the availability of habeas corpus relief. Indeed, we proceeded to review the merit of each of his substantive allegations; The petitioner argues that:
This Court in Engstrom merely noted that since the petitioner was serving sentences on four (4) separate convictions and the present petition challenged only one of them, he was properly incarcerated. Nowhere does the opinion imply that such unchallenged incarceration prevents the litigation of one of the convictions.8
I would join the Supreme Court of the United States in rejecting McNally and the immediate release rule. The petitioner should not be barred from collaterally attacking al*291legedly illegal convictions merely because he must continue to serve unchallenged sentences in any eventuality. We should not countenance a rule which would deny the petitioner the right to challenge two of his sentences until after he has served others which have not yet expired.
II. WERE PETITIONER’S GUILTY AND NOLO CONTENDERE PLEAS VOLUNTARILY AND UNDERSTANDINGLY ENTERED?
In denying the petitioner’s application, the circuit court found that “[tjhere is nothing in the record to support his allegation that at the time of the pleas he did not understand the nature of the charges or did not make the plea voluntarily.” While empirically accurate, the court’s observation is hardly dispositive of the issue. In essence, the court below ensnared the petitioner in Catch 22; it sought to impose upon the petitioner the burden of proving the involuntariness or lack of understanding of his plea, and then denied him the evidentiary hearing necessary to meet that burden. This is contrary to the law of Hawaii.
HRS § 660-24 provides in pertinent part that “ [u] pon the return of the writ or order to show cause, the court or judge, shall proceed without delay to examine the causes of imprisonment or restraint.” HRS § 660-27 states that
. . . the court shall proceed in a summary way to examine the causes of imprisonment or restraint and to hear evidence which may be offered by any person interested or authorized to appear either in support of the imprisonment or restraint or against it, and thereupon to dispose of the party as law and justice may require.
Thus, our habeas corpus statute, on its face, guarantees an evidentiary hearing to a petitioner alleging facts, which, if true, would establish the illegality of his conviction or convictions.
The material facts in the instant case are strikingly similar to those in Machibroda v. United States, 368 U.S. 487 (1962). Represented by counsel of his own choice, the petitioner in that case pleaded guilty to two counts of bank *292robbery and was sentenced. His subsequent motion to vacate and set aside the sentence under the habeas corpus statute alleged: (1) that his pleas of guilty had not been voluntarily entered, but had been induced by promises made by the prosecutor, and (2) that the court, in accepting his guilty pleas without first determining that they had been made voluntarily, had failed to comply with F.R.Cr.P., Rule 11. The United States District Court denied the motion without a hearing and the Court of Appeals affirmed. The Supreme Court vacated the judgment, declaring unambiguously:
The District Court did not proceed in conformity with the provisions of 28 U.S.C. § 2255, when it made findings on controverted issues of fact without notice to the petitioner and without a hearing. . . . The statute requires a District Court to “grant a prompt hearing” when such a motion is filed, and to “determine the issues and make findings of fact and conclusions of law with respect thereto” unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” [Footnote omitted.] This was not a case where the issues raised by the motion were conclusively determined either by the motion itself or by the “files and records” in the trial court. The factual allegations contained in the petitioner’s motion and affidavit, and put in issue by the affidavit filed with the Government’s response, related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light. Nor were the circumstances alleged of a kind that the District Judge could completely resolve by drawing upon his own personal knowledge and recollection.
. . . “Not by the pleadings and affidavits, but by the whole of the testimony, must it be determined whether the petitioner has carried his burden of proof and shown his right to a discharge. The Government’s contention that his allegations are improbable and unbelievable cannot serve *293to deny him an opportunity to support them by evidence. On this record it is his right to be heard.” Walker v. Johnston, 312 U.S. 275, at 287.
Machibroda, supra at 494-95.
The circumstances in the case at bar are at least as compelling as those presented in Machibroda. I would therefore hold that HRS ch. 660 requires that where the “factual allegations contained in the petitioner’s motion and affidavit . . . related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light,” id., at 494-95, a habeas corpus petitioner is entitled to an evidentiary hearing at which he may have an opportunity to meet his burden of proving the involuntariness of his guilty plea.9
The respondent’s reliance upon McMann v. Richardson, 397 U.S. 759 (1970), misses the mark. In that case, the United States Supreme Court held that “a defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on his petition for habeas corpus.” McMann, supra at 771. (Emphasis added.) The above holding was subject to the exception that a petitioner might still be entitled to a hearing if “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.” Id., at 774. McMann is clearly distinguishable from the case at bar. First, the petitioner alleges more than a coerced confession; he claims that he was “non compos mentis” at the time he entered his guilty plea and that Rule 11 was thus not complied with. If his claims *294are true, then his guilty plea is not otherwise valid. See McMann, supra at 760. Second, the petitioner’s guilty plea cannot be rationalized as an attempt to save himself the expense of trial and minimize the penalty that might be imposed. Id., at 767-68. His counsel was appointed by the court at no expense to him, and a conviction for first degree murder, to which he entered his guilty plea, carries a mandatory sentence of life imprisonment without parole.10 Third, the petitioner has not sought to bypass state remedies in his present action. Id., at 768-69. Indeed, he has energetically pursued them, the very course encouraged by implication in McMann. Fourth, the petitioner seeks to come within the McMann exception by amending his petition additionally to allege ineffective assistance of counsel. Such a course is proper, since the petitioner is not to be held to the niceties of lawyers’ pleadings, and permitting him to amend his petition is a better course than denying his original application altogether. Sanders v. United States, 373 U.S. 1, 22, 19 (1963). I conclude that the case at bar presents the very sort of “sharp dispute as to the facts material to a determination of the constitutional questions involved. . . . which should be decided only after a hearing.” Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 120-21 (1956).
III. PETITIONER’S RIGHT TO COUNSEL
I believe that in the circumstances presented by this appeal, the petitioner is entitled to the assistance of counsel at the evidentiary hearing which he should be accorded. In Engstrom v. Naauao, 51 Haw. 318, 321, 459 P.2d 376, 378 (1969), we held that although the
constitutional right to assistance of counsel under the sixth amendment of the United States Constitution, does not apply to habeas corpus proceedings[,] . . . [appointment may be properly made if the petition raises substantial issues which require marshalling of evidence and logical presentation of contentions.
*295In finding that the petitioner is entitled to an evidentiary hearing, I have already determined that his application raises such substantial issues. Where, as here, the test of the availability of an evidentiary hearing on facts alleged in a petition for a writ of habeas corpus is met, the petitioner should be provided with the assistance of counsel at such hearing.11
I would reverse and remand for proceedings consistent with this opinion.
HRS § 748-4.
The judge initially sentenced the petitioner to a term of fifty years on the robbery count, but, apparently correcting his own error, reduced the sentence to the statutory maximum of twenty years. HRS § 765-11.
RuIe 11 provides that:
A defendant shall be apprised of his right to counsel before plea. He may then plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.
Rule 32(d) provides that:
A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.
It appears from the record that the petitioner’s motion for subpoenas constituted his response to a court order, dated September 5, 1969, allowing the petitioner thirty days within which to file any additional objections to the legality of his restraint.
Although the majority opinion does not discuss the status of the “immediate release rule” in Hawaii, the result that I reach requires that the issue be resolved.
AppelIee’s Answering Brief, at 6.
Appellant’s Reply Brief, at 1.
I note in passing that a retroactive application of Boykin v. Alabama, 395 U.S. 238 (1969), would warrant reversal of the petitioner’s convictions. However, I need not reach the question of Boykin’s retroactivity, since the petitioner seeks much more limited relief than that which would be accorded under the Boykin standard. Boykin held that a habeas corpus petitioner is entitled to a new trial if the trial judge failed to make the affirmative determination, required by F.R.Cr.P., Rule 11, that the petitioner’s guilty plea was entered voluntarily. The petitioner’s right to an evidentiary hearing on the truth of his factual allegations derives, however, from pre-Boykin standards.
HRS § 748-4.
See Powell v. Alabama, 287 U.S. 45, 68-69 (1932):
The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He requires the guiding hand of counsel at every step in the proceedings against him. ... If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.
(Emphasis added.)