United States ex rel. Ross v. McMann

409 F.2d 1016

• Court: Court of Appeals for the Second Circuit
• Decided: February 26, 1969
• Docket: Nos. 492, 540, Dockets 32140, 30420
• Status: Published

Opinions

J. JOSEPH SMITH, Circuit Judge

(with whom WATEEMAN, IEVING E. KAUFMAN, HAYS, ANDEESON and FEINBEEG, Circuit Judges, concur):

I.

United States ex rel. Ross v. McMann is an appeal from a dismissal without hearing of an application by a state prisoner for writ of habeas corpus in the District Court for the Eastern District of New York, Walter Bruchhausen, Judge. Eelator, confined in a New York State prison for a term of 45 years to life on conviction upon plea of guilty to murder in the second degree, petitioned the Supreme Court of the State of New York for Kings County for a writ of error coram nobis on the ground that his guilty plea was induced by coerced confessions. The writ was deniéd without a hearing, the decision affirmed without opinion by the Appellate Division, People v. Ross, 26 A.D.2d 773, 272 N.Y.S.2d 969 (2d Dept. 1966) and leave to appeal denied by the New York Court of Appeals.

The District Court entertained the application for writ of habeas corpus, and dismissed the petition without a hearing on the ground that “a voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings against him,” relying on United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2 Cir. 1965), cert. denied 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966). In his complaint and supplemental affidavit Ross alleges that he pleaded guilty because his attorney had'refused to attempt to suppress a confession which had been illegally obtained from him and had warned him that if he risked a trial, the confession and other evidence against him would surely lead to his conviction for first degree murder and sentence to the electric chair.¹ We hold that these allegations raise a sufficient question as to the voluntariness of the plea of guilty to require a hearing before the issue is determined.

On the record before us, it appears that Ross has sufficiently raised his present claims in the state courts to satisfy the requirement of exhaustion of state remedies. On oral argument, however, it was represented that a second petition by Eoss for relief by writ of error coram nobis has been brought to and is pending in the state courts. If this is determined by the District Court to be the fact, that court may defer hearing in this matter pending final determination of the action in the state courts. And, if hearing is had on the issue in the state courts, the District Court may find further hearing before it unnecessary to its determination of the merits. We reverse and remand to the District Court for further proceedings not inconsistent with this opinion.

This case raises the narrow question whether a District Court should apply the standards of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), in determining whether to hold an evidentiary hearing upon a habeas corpus petition where the petitioner is confined after a plea of guilty and is contending that the plea was not voluntary, because it was induced by the existence, or threatened use, of an allegedly coerced confession.

It is clear, first of all, that a plea of guilty, even where the defendant is represented by counsel, is not an absolute bar to collateral attack upon a conviction. Waley v. Johnston, Warden, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942). Cf. Pennsylvania ex rel. Herman v. Claudy, Warden, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956). (In Herman, petitioner did not have benefit of counsel.) See also Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962): “A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack.” To paraphrase Harrison v. United States, 392 U.S. 219, 223, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), “The question is not whether the petitioner made a knowing decision to [plead] but why.” Nor is the mere existence of a coerced confession enough to invalidate a later guilty plea by a defendant represented by counsel.

The question to be answered in any case involving a collateral attack on a conviction based upon a plea of guilty is usually expressed in terms of whether or not the plea was a “voluntary” act. [An “involuntary” plea of guilty is inconsistent with due process of law, see Waley v. Johnston, supra, 316 U.S. at 104, 62 S.Ct. 964, and thus invalid whether made in federal or state court.] And Townsend v. Sain, supra, 372 U.S. at 312-313, 83 S.Ct. 745, requires that where the petitioner in such a case has not received a “full and fair evidentiary hearing” in a state court as to the voluntariness of the plea, a hearing be held in the federal District Court.

The question of when to hold a hearing has apparently been complicated in this Circuit, however, by confusion between the doctrine that an involuntary guilty plea may be collaterally attacked and the well-established doctrine that if the plea is voluntary, it is an absolute waiver of all non-jurisdictional defects in any prior stage of the proceedings against the defendant.

Judge Weinfeld said in United States v. Colson, 230 F.Supp. 953, 955 (S.D.N.Y. 1964), “The determination of the ultimate question of whether the defendant, at the time he pled guilty, had the free will essential to a reasoned choice, rests upon probabilities and, of course, cannot be resolved with mathematical certainty. It involves an evaluation of psychological and other factors that may reasonably be calculated to influence the human mind. * * * [I] t is necessary to consider the plea of guilty against the totality of events and circumstances which preceded its entry.” The determination is difficult, but it is not necessarily rendered more difficult simply because a coerced confession or an illegal search and seizure is one of the factors which may be taken into account.

In the case at bar, the court, relying on Glenn, found it unnecessary to make such a determination. This, we think, resulted from a too expansive reading of Glenn. The opinion in Glenn may be read either of two ways: (1) the allegation of a coerced confession, without more, is not sufficient to raise the issue of the voluntariness of a guilty plea; or (2) an unconstitutionally coerced confession is never relevant to the issue of the voluntariness of a guilty plea. The first, more narrow reading, seems to us to state the proper rule. But the second reading (the much more likely meaning of the opinion despite the use of the word “voluntary,” in view of the allegation that the plea was coerced by the existence of an involuntary confession) confuses the doctrine that an involuntary guilty plea may be collaterally attacked with the doctrine that if it is voluntary, a guilty plea waives prior defects in the proceedings against the defendant.

The court relied on two cases in Glenn: United States ex rel. Swanson v. Reincke, 344 F.2d 260 (2 Cir.), cert. denied 382 U.S. 869, 86 S.Ct. 144, 15 L.Ed.2d 108, 1965 and United States ex rel. Boucher v. Reincke, 341 F.2d 977 (2 Cir. 1965). Neither of those cases holds that the waiver rule should operate to make an invasion of the defendant’s Constitutional rights irrelevant to the issue of the voluntariness of the guilty plea.

In Swa/nson, this court affirmed the denial of relief in a habeas corpus proceeding challenging the constitutionality of the statute under which petitioner had been convicted, where a hearing had been held below. There is language in the court’s opinion refusing to rest affirmance on the ground that a plea of guilty should bar collateral attack. In discussion of that issue, 344 F.2d at 261-262, it was said:

The cases most nearly in point but by no means exactly so concern guilty pleas proper in other respects, such as right to counsel, but lodged after the police had obtained evidence in violation of constitutional rights; a number of circuits have said such guilty pleas are not subject to attack [citing cases], even when induced by that evidence [citing cases].2

In Boucher, the other case cited in Glenn, the petitioner sought to attack his conviction based upon a guilty plea. After stating the waiver rule, this court said:

To circumvent the effect of the guilty plea as a waiver, the petitioner asserts that his plea was induced by inadequate representation by counsel and by the fear that unconstitutionally obtained evidence would be used at his trial.

341 F.2d at 981. The opinion then goes on to explain how the petitioner’s representation by counsel had been entirely competent, there were no circumstances indicating an illegal search and seizure, and “There is not a shred of evidence that anyone induced him to plead guilty and the court concluded ‘it was made freely, voluntarily and intelligently.’ ” A hearing was held in Boucher.

The meaning of the rule was also left somewhat uncertain by a per curiam, opinion in United States ex rel. Martin v. Fay, 352 F.2d 418 (2 Cir. 1965), cert. denied Martin v. Follette, 384 U.S. 957, 86 S.Ct. 1581, 16 L.Ed.2d 552 (1966). There, a denial without a hearing of an application for habeas corpus was affirmed, where appellant claimed, inter alia, that he pleaded guilty because a coerced confession had been obtained from him. The court said: “An examination of the facts and circumstances surrounding the taking of the plea convinces us that the plea was made voluntarily, the colloquy between the sentencing judge and appellant being decisive.” The court then cited the waiver rule, as stated in Glenn, along with a “see also” citation to Swanson and Boucher. Judge Waterman concurred on the ground of failure to exhaust state remedies, and stated that he thought the court had made an ambiguous use of the word “voluntary,” since although the petitioner had not demonstrated that a hearing would prove his allegation that his guilty plea was “required by an alleged prior forced confession,” “Nevertheless, I can conceive of situations in which a plea of guilty upon the advice of counsel would have been caused by circumstances entitling the defendant to challenge his own act on the ground it was a compelled act.” 352 F.2d at 419.

We have in other cases also used language inconsistent with the District Court’s reading of Glenn here. In United States ex rel. Siebold v. Reincke, 362 F.2d 592 (2 Cir. 1966), a denial of a petition for a writ of habeas corpus was affirmed per curiam on the ground that “the hearing before the District Court indicated that petitioner’s guilty plea was not the result of unconstitutionally obtained evidence.” 362 F.2d at 593. In the course of the opinion, it was noted that “A conviction will not be sustained if it rests upon a plea of guilty which is the result of coercion, nor, perhaps, if the plea of guilty resulted from other violations of constitutional rights,” citing Vaughn, supra, (United States ex rel. Vaughn v. LaVallee, 318 F.2d 499 [2d Cir. 1963]), and United States ex rel. McGrath v. LaVallee, 319 F.2d 308, 311 (2 Cir. 1963). Neither Glenn nor Martin was mentioned. In McGrath, the court split three ways (for no hearing, a hearing and outright granting of a writ of habeas corpus) in a case where petitioner contended that his guilty plea had been involuntary — the claim of coercion was based upon what the trial judge said to the petitioner just before the guilty plea was entered.

The rule should be stated as follows: Where a petition for habeas corpus raises a claim that a guilty plea was not voluntary, the standards of Townsend v. Sain are applicable in determining whether to hold a hearing; and although the waiver rule means that an allegation that the petitioner’s constitutional rights were violated before the plea was taken is not, standing alone, sufficient to call the validity of the plea into question, nonetheless if it is alleged that the plea was coerced in a manner spelled out in the petition, the alleged violations are not irrelevant to the issue of the voluntariness of the plea. An alleged violation of constitutional rights is simply another factor to be taken into account in determining the voluntariness of the plea.

On the other hand, the fact that the petitioner was represented by counsel and acted after consultation with counsel is also to be given substantial weight in determining the issue of voluntariness of plea.

From and after Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the state and federal courts have stressed the value and necessity of providing an accused with counsel because, except in the very few cases of inadequate representation, the professional skill and judgment of the attorney, exercised on his client’s behalf, affords the accused protection of his rights. The role of the attorney in advising a plea of guilty should not, therefore, be ignored. Even where there is evidence that a confession has been coerced, there may be factors which would justify counsel for the accused, once a fair hearing by the state court has been held on a motion to suppress the confession and suppression has been denied, to advise a plea of guilty. Therefore, a mere conclusory allegation by a prisoner without more, that the existence of a coerced confession induced his guilty plea, in the absence of any particularized allegations as to how that confession rendered his plea involuntary, should not ordinarily be considered sufficient to predicate an order for a hearing.³ See United States ex rel. White v. Fay, 349 F.2d 413 (2 Cir. 1965); United States ex rel. Homchak v. New York, 323 F.2d 449 (2 Cir. 1963), cert. denied 376 U.S. 919, 84 S.Ct. 677, 11 L.Ed.2d 615 (1964).

The rule we have set out is apparently consistent with the views of at least the Third, Fifth, Sixth, Seventh, and Ninth Circuits. See United States ex rel. Collins v. Maroney, 382 F.2d 547 (3 Cir. 1967) (per curiam); Smith v. Wainwright, 373 F.2d 506 (5 Cir. 1967); cf. Carpenter v. Wainwright, 372 F.2d 940 (5 Cir. 1967), a stronger case for the petitioner; Reed v. Henderson, 385 F.2d 995 (6 Cir. 1967), dictum: “Appellant apparently attempts to circumvent the waiver attending the plea of guilty by claiming that the plea was involuntary in that it was the product of, or induced by, certain coerced admissions which had been obtained from him by the police. That this may be a ground for habeas corpus relief appears to be well settled,” 385 F.2d at 996; Shelton v. United States, 292 F.2d 346 (7 Cir. 1961), cert. denied 369 U.S. 877, 82 S.Ct. 1149, 8 L.Ed.2d 280 (1962); Doran v. Wilson, 369 F.2d 505 (9 Cir. 1966).

To sum up: Glenn says, in effect, that a “voluntary” plea of guilty wipes out all prior invasions of the defendant’s constitutional rights. Whether that is correct or not depends on the meaning of “voluntary”; it must be recognized that a prior invasion of the defendant’s rights, even if not sufficient after the taking of the plea to overturn the conviction, may still be entirely relevant to the issue of the plea’s voluntariness. The problem is that Glenn, together with Martin, is sometimes being read by the District Courts to say that a coerced confession or other violation of a defendant’s rights is never relevant to the issue of voluntariness, and in these cases the District Courts are relying upon representation by counsel and proper questioning by the judge at the plea taking to establish voluntariness without more, even where the allegations of the habeas corpus petition raise questions which cannot be answered by reference to the transcript alone.

This court has recently discussed the reasons why the voluntary guilty plea constitutes a waiver of all non-jurisdictional defects, United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209 at 213 (2 Cir. 1967):

There is nothing inherent in the nature of a plea of guilty which ipso facto renders it a waiver of a defendant’s constitutional claims. Rather, waiver is presumed because ordinarily such a plea is an indication by the defendant that he has deliberately failed or refused to raise his claims by available state procedures; therefore, principles of comity and the interests of orderly federal-state relations require that he should not be allowed to present these claims to the federal courts.

A distinguishing feature of the present case, however, is that the only available state procedure by which he could contest the validity of the confession was the one declared retroactively unconstitutional in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). This is even more damaging to an accused than the lack of a right to appeal the intermediate order denying the Fourth Amendment motion to suppress in Rogers, supra, 381 F.2d at 214.

Faced with that hazard as his only alternative recourse, made particularly perilous in the context of the first degree murder charge with a possible death penalty, the decision of the accused, on advice of counsel, to plead guilty to second degree murder might well be held to have been involuntary. The petitioner cannot be deemed to have waived his coerced confession claim by deliberately by-passing state procedures when the state failed to afford a constitutionally acceptable means of presenting that claim, and he cannot be deemed to have entered a voluntary plea of guilty if the plea was substantially motivated by a coerced confession the validity of which he was unable, for all practical purposes, to contest.

The judgment is reversed and the case remanded with instructions to hear and determine petitioner’s application unless a hearing is held by the courts of the state determining under the standards set forth herein the issue of the voluntariness of petitioner’s plea⁴ within 60 days from the date of issuance of the mandate herein, or such further time as the District Court may for good cause allow.

II.

Turning to United States ex rel. Dash v. Follette, Foster Dash was sentenced on August 3, 1959, in the New York state courts on plea of guilty to a charge of robbery second degree, to imprisonment for a term of 8 to 12 years as a second felony offender. Dash sought release by writ of error coram nobis on the ground that a false confession was obtained from him after indictment in violation of his right to counsel, and that his plea of guilty was induced by advice of counsel that the confession would negate any chance of acquittal and by a threat by the trial judge that he would receive the maximum possible sentence if he went to trial and was found guilty. The writs were denied without hearing, and the orders affirmed by the Appellate Division (People v. Dash, 21 A.D.2d 978, 252 N.Y.S.2d 1016) and by the Court of Appeals (16 N.Y.2d 493, 260 N.Y.S.2d 437, 208 N.E.2d 171 (1965)), two justices dissenting.

Petitioner then applied for writ of habeas corpus, alleging similar grounds, in the United States District Court for the Southern District of New York. The Court, John M. Cannella, J., denied the application, relying principally on United States ex rel. Glenn v. McMann, supra, United States ex rel. Swanson v. Reincke, supra, and United States ex rel. Boucher v. Reincke, supra5 and petitioner appeals. We reverse and remand with instructions.

In this case, as in United States ex rel. Ross v. McMann, decided herewith, a state prisoner’s application for writ of habeas corpus was denied without hearing, the court relying largely on United States ex rel. Glenn v. McMann, since the petitioner, represented by counsel, had pleaded guilty in the state court. Here Dash alleges coercion of his confession. (Conviction of two of his co-defendants who went to trial was set aside because it was held that their confessions were coerced. People v. Waterman, 12 A.D.2d 84, 208 N.Y.S.2d 596, aff’d 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1961).) He also alleges coercion of his plea, relying partly on the existence and threatened use of his coerced confession, and partly on an alleged threat by the judge to impose the maximum possible sentence if he were found guilty after a trial. The latter ground was dismissed from consideration by the judge because the report of the state court proceeding, People v. Dash, 16 N.Y.2d 493, 260 N.Y.S.2d 437, 208 N.E.2d 171 (1965), indicated that the prosecutor had filed an affidavit categorically denying that the trial judge ever threatened the defendant.

In this case, as in Ross v. McMann, the claim is made that the existence of a coerced confession, in a ease determined prior to Jackson v. Denno, supra, so tainted the state court proceedings that the plea was not voluntary. For the reasons set forth in Ross v. McMann, we think the allegations here sufficient to call for a hearing on the voluntariness of the plea unless a full hearing and determination of the issue is provided in the courts of the state. As we held in Boss, “The petitioner cannot be deemed to have waived his coerced confession claim by deliberately by-passing state procedures when the state failed to afford a constitutionally acceptable means of presenting that claim, and he cannot be deemed to have entered a voluntary plea of guilty if the plea was substantially motivated by a coerced confession the validity of which he was unable, for all practical purposes, to contest.” In these circumstances there is an issue as to the motivation of the plea which cannot be resolved without a hearing. If it was motivated by the claimed threat of the judge, or the existence and threatened use of a coerced confession, it may be found not to have been voluntary. On the other hand, if it is found that there was no such threat by the judge, and if the plea was freely made on advice of counsel because of the weight of the state’s case aside from the confession, with apparent likelihood of conviction regardless of the confession, in a considered effort to obtain a lighter sentence, the court may find the plea voluntary, and the conviction unassailable.

Reversed and remanded with instructions to hear and determine petitioner’s application unless a hearing is held by the courts of the state determining under the standards set forth herein the issue of the voluntariness of petitioner’s plea ⁶ within 60 days from the date of issuance of the mandate herein, or such further time as the District Court may for good cause allow.

1 . Judge Bruchhausen in his opinion recited some of Boss’ allegations, including the following:

“In May, 1954, while in State custody, the relator was taken to the office of the District Attorney and questioned about the commission of a murder; he was coerced into signing a statement, confessing the crime; his request to be permitted to consult with his attorney was refused and he was not advised of his right to remain silent;

“In October, 1954, he was arraigned on an indictment, charging him with the commission of first degree murder;

“Five or six weeks later, he requested his court appointed lawyer, Mr. Harvey Strelzin, to seek the return of the confession; Strelzin urged that no such action be taken; if he persisted in demanding a trial, Mr. Jenkins, a witness for the People would testify against him and he would get the chair;

“In February, 1955, he was brought into court, represented by counsel, and informed that the District Attorney was willing to accept a plea to second degree murder and that his sentence would be twenty years to life; he thereupon pleaded guilty to that charge;

“March 14, 1955, judgment of conviction was entered, including a sentence of forty-five years to life”;

Among other allegations by Ross was the following:

“13. Sometime later he visited me again; I would say it was five or six weeks afterward, but I cannot be certain with greater specificity. I asked him then ‘to get my confession back.’ I recall those to have been my exact words. I meant that I wanted to repudiate the confession and have it suppressed. I spoke in the belief that it could be done in some way. He told me that that was completely out of the question and that at any rate the District Attorney had the gun, that nothing had changed, that Jenkins would tell his story to the jury, and that his testimony, backed up by the confession and the gun, would be enough to make ‘a jury of twelve cousins’ convict me and send me to the electric chair. He told me that he would ‘get the first possible break’ for me from, the District Attorney, but that I ‘would be dead by the Fourth of July’ if I risked a trial.

“14. When I was brought to Court in February of 1955, Mr. Strelzin came in to see me while I was in the detention cell. I asked him again about repudiating and suppressing my confession ; this seemed to exasperate him because he spoke sharply about having gone all through that before and that I had better listen to him because he was my lawyer and not those convicts in Raymond Street who would all be in Sing Sing in six months with all the law they knew. I told him I had not asked him on the basis of anything anyone had told me. He seemed to grow calmer at that. He told me he had spoken to the District Attorney, who was willing to allow me to plead to second degree murder, and I would get twenty years to life; he said it was an ‘or else’ offer, that I knew the evidence the District Attorney could present against me. He said that things were no better than before and, if anything, were much worse; the District Attorney had the confession, the gun, and Jenkins, who could be expected to tell any story to help himself. If I insisted on going to trial, well, he was my lawyer and would do what he could, though that couldn’t amount to very much because ‘there isn’t a pair in the world to beat four aces.’ Twenty to life was a long time, he wasn’t going to argue that it wasn’t; but it had to be better than the electric chair.”

2 . The cases cited in the quoted discussion in Swanson are the following: Gonzalez v. United States, 210 F.2d 825 (1 Cir. 1954) (denial of motion to vacate judgment affirmed where conviction based on guilty plea and motion based solely on the ground that evidence had been unconstitutionally seized); Hall v. United States, 259 F.2d 430 (8 Cir. 1958), cert. denied 359 U.S. 947, 79 S.Ct. 728, 3 L.Ed.2d 680 (1959) (denial of motion to vacate sentence affirmed where the allegation was of confession after “four hours of intensive interrogation without legal advice or counsel,” but there was a finding in the District Court that there was a “free and voluntary” plea of guilty) ; Watts v. United States, 107 U.S.App.D.C. 367, 278 F.2d 247 (1960) (denial of Sec. 2255 motion to vacate sentence affirmed, where the motion was based on the ground that police used appellant's- co-defendant’s confession to induce him to confess and then to plead guilty, but upon a full hearing in the District Court it was found, on ample evidence, that the guilty plea was “competently, voluntarily and intelligently entered” — the statement, picked up out of context in the West’s headnote, that collateral attack on the plea of guilty would not lie, reads in full, 278 F.2d at 250: “Finally, at the hearing we ordered, appellant frankly admitted his guilt. On this record collateral attack will not lie.”) ; and United States ex rel. Staples v. Pate, 332 F.2d 531 (7 Cir. 1964) (dismissal of petition for habeas corpus affirmed, where petitioner contended that his plea of guilty did not waive prior police misconduct — alleged illegal search— which “induced” his plea, but the District Court found after a hearing that petitioner was not entitled to a writ, and the Court of Appeals noted three times that there was no evidence presented at the hearing that the plea was not voluntary) .

3 . To enable the district court to decide whether or not a hearing should be ordered, additional supporting material such as the affidavit of the attorney who represented the petitioner when he entered the guilty plea, or exhibits or affidavits of persons having knowledge of the claimed facts, should be appended, with the petitioner’s own affidavit, to the original petition filed with the district court. In this case, however, we are satisfied from the petitioner’s affidavit alone that he is entitled to the requested hearing.

4 . The conviction would stand, of course, if the state court found after full and fair evidentiary hearing, either that the confession was voluntary or that the plea was not substantially motivated by the confession.

5 . The District Court summarized the record before it as follows:

“Petitioner alleges: (1) that his plea of guilty was the product of a coerced confession, (2) that his plea of guilty was coerced by the trial court by telling him he would get the maximum penalty if found guilty after trial.

“In regard to the first contention, it is well settled that a voluntary plea of guilty entered on advice of counsel constitutes a waiver of all nonjurisdictional defects in any prior stage of the proceedings against the defendant. United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2d Cir. 1965); United States ex rel. Swanson v. Reincke, 344 F.2d 260 (2d Cir. 1965); United States ex rel. Boucher v. Reincke, 341 F.2d 977 (2d Cir. 1965). Petitioner therefore cannot succeed on the basis of his first contention.

“With respect to the second contention it appears that the prosecutor in the state court proceedings filed an affidavit in which he categorically stated that the trial judge never threatened the defendant. See, People v. Dash, 16 N.Y.2d 493 [260 N.Y.S.2d 437, 208 N.E.2d 171] (1965).

“Further the transcript relating to the entry of petitioner’s plea of guilty clenrly indicates that the defendant made an intelligent and uncoerced choice and that no promises or threats were made to him.”

6 . The conviction would stand, of course, if the state court found after full and fair evidentiary hearing, either that the confession was voluntary and there was no threat by the judge, or that the plea was not substantially motivated by the confession or by the alleged threat of the judge.