KAUFMAN, Circuit Judge.
Appellant is serving a prison sentence under a judgment entered in the County Court of Queens County, New York, upon a plea of guilty to the crime of second degree robbery. His application for a writ of habeas corpus, founded upon the contention that his guilty plea was not entered voluntarily, was denied by District Judge Brennan without a hearing. Appellant had previously raised this contention in the state courts on application for a writ of coram nobis and his application was there also denied without hearing. The denial was affirmed in the Appellate Division, the New York Court of Appeals denied leave to appeal, and certiorari was denied by the Supreme Court. State court remedies have been exhausted. 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).
On October 20, 1953, appellant was indicted for the crimes of first degree robbery, petit larceny, second degree assault, and possession of a dangerous weapon. On November 17, 1953, the date the ease was called for trial, the appellant withdrew his plea of not guilty and, with the guidance of experienced counsel, entered a plea of guilty to robbery in the second degree. Appellant’s decision to alter his plea was made during the course of a conference in the chambers of the trial judge — attended by the judge, the defendant, defendant’s attorney, the Assistant District Attorney, the court stenographer, and at least one court attendant. On February 2, 1954, appellant was sentenced as a second felony offender for a term of not less than twenty-nine nor more than thirty years.
The validity of appellant’s contention as to the involuntary character of his guilty plea and the resulting violation of due process turns upon an evaluation of the conversation which took place between the appellant, the trial judge, and the appellant’s attorney during the conference on November 17, 1953.
Accompanying his application in the District Court for a writ of habeas corpus was an affidavit setting out in considerable detail appellant’s version of what transpired at the conference in the judge’s chambers. A similar affidavit had been submitted by appellant to the New York courts in support of his application for coram nobis; the truth of the matter asserted therein was sworn to by appellant’s trial attorney as well as by the appellant himself. Appellant charges in his papers that upon entering the judge’s chambers he was informed by the judge that the discussion was to be off the record and that, in fact, no minutes were recorded (although appellant does concede that a court stenographer was present). The judge, appellant says, stated that he had been told by the district attorney that the appellant “didn’t have a chance ‘on a trial’; that they had me ‘like this’ bringing both his arms across the front of his body to indicate that I was in a vise. He went on to say that if I went to trial and was convicted, I would never see the sunshine again, because my record alone would convict me.” Appellant’s attorney is alleged to have told the judge that his client was reluctant to plead to the reduced count of robbery in the second degree because he feared a sentence of 15 to 30 years. (In New York, mandatory sentence as a second or third felony offender for second degree robbery is 7% to 30 years, while the mandatory sentence as a second or third offender is 15 [310]*310to 60 years for first degree robbery. N.Y. Penal Law §§ 2125, 2127, 1941.) “The judge shook his head, indicating negation as to this, and told my attorney that anyone who pleaded guilty before him automatically received consideration.” Appellant contends that he thereupon requested a postponement in order to consider the alternative of pleading guilty, but that upon the judge’s refusal “I felt compelled to yield.” The judge is-then said to have admonished the appellant: “When you return to the courtroom, I am going to ask you whether any promise was made to you, you are to answer, ‘no.’ Is that understood?” to which the appellant responded in the affirmative.
The State’s version of the conference in the trial judge’s chambers differs in certain material respects from that of the appellant and his trial attorney. The State relies upon stenographic transcripts of the proceedings in chambers as well as in the courtroom when the plea was formally entered. The transcript of the conference in chambers reveals that at the outset, the trial judge stated that “if you want a trial, you will certainly get a fair trial.” But he noted that the likelihood of appellant’s acquittal was “not too good,” and that if he was convicted he would be entitled to no consideration from the judge who “might have to send you away for the rest of your life.” The judge constantly reiterated that he was making “no promises as to your sentence,” and that “You have a very able counsel here, one of the best. I am not telling you what you should do or what you should not do. I am merely pointing out to you what you face.” He stated that only the accused knew whether or not he was responsible for the crimes charged, and that the decision to proceed to trial, guaranteed to be a fair trial, was with the defendant alone. Appellant was reminded that a plea to robbery in the second degree would offer the appellant “some opportunity of receiving a shorter sentence * * *. If I sentence you after a conviction of robbery in the first degree, you are going to be away until you are an old man. But I emphasize that I am not telling you what to do, son.” The transcript reveals that appellant’s trial attorney was fully in sympathy with the views of the trial judge:
“The Court: * * * From what I have heard about this case, this is a very serious crime. The defendant must consider that in relation to his chances which are- — ■
“Mr. George: I know he hasn't any, Judge.
“The Court: If he is convicted, I am faced with a mandatory first-degree robbery as a second offender.
“Mr. George: Your hands are tied. Your hands are tied at 15.”
The transcript reveals that appellant thereupon agreed to enter a guilty plea, to the lesser degree, and his counsel concurred in the decision; before returning-to the courtroom, the trial judge directed appellant to answer in the affirmative-when asked whether or not he wished to. plead guilty.
Petitioner’s allegations challenge the-authenticity of the State’s transcript of proceedings of the conference in chambers. Indeed, his papers raise the claim-that no minutes of the conference were-ever taken, for the judge immediately noted that it was to be “off the record.'” He also contends that, even if the minutes were taken, they were apparently not transcribed until six years later, and that the transcribing stenographer might, well have been different from the reporter present in the judge’s chambers, thus accounting for errors or inconsistencies in the transcript. Moreover, petitioner’s version of the conference, which in itself calls the transcript into question,, was sworn to by his trial attorney in an affidavit incorporated in his application papers.
Petitioner does not dispute the ac- ■ curacy of the transcript of the proceed- - ings which took place subsequently in, the courtroom, when he formally entered' his guilty plea. This reveals that he, responded affirmatively when the judge-[311]*311•asked: “And do you realize further that no promise has been made to you, your .attorney, or anyone else in your behalf concerning any sentence or punishment that might be meted out to you should such plea be accepted by me from you?” Petitioner does, however, state in his application that “I regarded the questioning as ‘window dressing.’ I trusted implicitly in the Judge’s assurance given in chambers that I would be given ‘consideration’.” Nonetheless the record discloses that on at least four occasions, appellant was apprised by the judge in open court that the consequence of a guilty plea would be his “going away for a long time” in prison.
Two and a half months later, the court imposed a sentence of 29 to 30 years imprisonment; in imposing a sentence just short of the statutory maximum, the trial judge made known that he was clearly influenced by the appellant’s most unsavory criminal record which was before him on sentencing in a probation report and unknown to him at the time he accepted appellant’s plea.1
In passing upon appellant’s application for a writ of habeas corpus, the court below examined only the papers submitted in support of and in opposition to the motion. He found that the stenographic transcript and records offered by the State “conclusively refute petitioner’s contention that he was either threatened, promised, or overreached in the matter of the entry of his guilty plea,” and therefore denied the application without a hearing. The petitioner’s •affidavits were rejected because not “convincing as a contradiction of the stenographic transcript,” and because appellant’s failure to protest to the trial judge that the sentence imposed violated an implicit promise “indicates an afterthought on the part of the petitioner.” At no time, therefore, either in the state or the federal court, has appellant received a hearing on the question of the authenticity of the stenographic transcript purporting to record accurately the conference held in chambers on November 17, 1953.
We therefore hold that the District Judge erred in disposing of appellant’s application without a hearing as to the authenticity of the questioned stenographic transcript, and we remand for further proceedings consistent with this opinion.
It is clear that a conviction, whether in a state or federal court, based upon an involuntary plea of guilty — one induced by promises or threats — is inconsistent with due process of law. If the plea was the product of coercion, either mental or physical, or was “unfairly obtained or given through ignorance, fear or inadvertence,” Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), the judgment of conviction which rests upon it is void and is subject to collateral attack on federal habeas corpus. See Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942) ; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941); United States v. Tateo, 214 F.Supp. 560 (S.D.N.Y.1963).
When the petition in support of an application for habeas corpus re[312]*312veals upon its face that it is defective as a matter of law, the habeas court may dismiss the application without a hearing. See 28 U.S.C. § 2243; Walker v. Johnston, 312 U.S. at 284, 61 S.Ct. at 578, 85 L.Ed. 830. Moreover, a hearing is not required when the habeas court has before it a full and uncontested record of state proceedings which furnishes all of the data necessary for a satisfactory determination of factual issues. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Machibroda v. United States, 368 U.S. at 494, 82 S.Ct. at 513-514, 7 L.Ed.2d 473; Walker v. Johnston, 312 U.S. at 284, 61 S.Ct. at 578, 85 L.Ed. 830; Grundler v. North Carolina, 283 F.2d 798 (4th Cir., 1960); United States ex rel. Wade v. Jackson, 256 F.2d 7 (2d Cir.), cert. denied, 357 U.S. 908, 78 S.Ct. 1152, 2 L.Ed.2d 1158 (1958). When, however, petitioner alleges that a guilty plea entered by him was the product of deceit, promise, or threat, and facts are specifically set forth which support that allegation and which create issues incapable of resolution by a simple examination of the files and records before the federal District Court, that court must grant the petitioner a hearing. Certainly, petitioner cannot be denied a hearing merely because the facts asserted by him are contradicted by the answer of the State’s prosecuting officers, for it is this denial which creates the factual issue to be resolved. Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 123, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Reickauer v. Cunningham, 299 F.2d 170 (4th Cir.), cert. denied, 371 U.S. 866, 83 S.Ct. 127, 9 L.Ed.2d 103 (1962) . Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) , sets out the basic principle: “Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding”; unless, of course, petitioner’s allegations are “vague, conclusory, or palpably incredible”, Machibroda v. United States, 368 U.S. at 495, 82 S.Ct. at 514, 7 L.Ed.2d 473, or are “patently frivolous or false,” Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. at 119, 76 S.Ct. at 225, 100 L.Ed. 126.
With these principles in mind, we are impelled to conclude that the District Court erred in denying the writ without a hearing. Petitioner’s allegations contesting the accuracy of the transcript in question cannot, we believe, justly be found upon their face to be palpably incredible or patently frivolous. “There will always be marginal cases, and this case is not far from the line. But the specific and detailed factual assertions of the petitioner, while improbable, cannot at this juncture be said to. be incredible.” Machibroda v. United States, 368 U.S. at 496, 82 S.Ct. at 514-515, 7 L.Ed.2d 473. We fully agree with the court below that the transcript offered by the State is entitled to the greatest, of weight. But it is also true that specific allegations of fraud or irregularity which call into dispute the accuracy of' the record entitle the prisoner to a hearing. See Walker v. Johnston, 312 U.S. at 286, 61 S.Ct. at 579, 85 L.Ed. 830; Daniel v. United States, 107 U.S.App.D.C. 110, 274 F.2d 768 (1960), cert. denied, 366 U.S. 970, 81 S.Ct. 1935, 6 L.Ed.2d 1260 (1961); Smith v. United States, 216 F.2d 724 (5th Cir., 1954); Winhoven v. United States, 201 F.2d 174 (9th Cir., 1952); cf. Machibroda v. United States, 368 U.S. at 494-495, 82 S.Ct. at 513-514, 7 L.Ed.2d 473; Chessman v. Teets, 350 U.S. 3, 76 S.Ct. 34, 100 L.Ed. 4 (1955); Chavez v. Dickson, 280 F.2d 727, 737— 738 (9th Cir., 1960), cert. denied, 364 U.S. 934, 81 S.Ct. 379, 5 L.Ed.2d 366 (1961). Petitioner has done more than, merely set forth a version of the facts, contradictory to that offered by the State; he alleges with specificity, as noted above, certain conditions which, call into question the accuracy and indeed the authenticity of the transcript. He thus raises a triable issue which warrants a hearing.
[313]*313We need comment but briefly on the observation of the District Court that petitioner’s allegations were suspect on their face because of the lapse of more than six and a half years between the date of sentencing and the date of the coram nobis application to the state courts in which his version of the facts was first presented; he thought that this dilatoriness “indicates an afterthought.” It is true that the lapse of time in petitioner’s bringing this issue to light, in addition to his failure at the time of sentencing to protest that an implied promise had been broken by the trial judge and his failure to raise the issue of coercion on direct appeal from the state conviction, all cast some doubt upon the veracity of petitioner’s allegations and would cast doubt upon his credibility were he to reiterate them at a hearing. But it has been consistently held that assertions of improbability or incredibility founded merely upon a delay in the assertion of a constitutional right, are not sufficient to deprive the petitioner of a hearing in the first instance on contested facts. See Machibroda v. United States, 368 U.S. at 495-496, 82 S.Ct. at 514-515, 7 L.Ed.2d 473; Walker v. Johnston, 312 U.S. at 287, 61 S.Ct. at 579, 85 L.Ed. 830. The mere passage of time does not deprive the petitioner of his right to challenge the constitutionality of his confinement by writ of habeas corpus. See United States ex rel. Wade v. Jackson, 256 F.2d 7, 10 (2d Cir.), cert. denied, 357 U.S. 908, 78 S.Ct. 1152, 2 L.Ed.2d 1158 (1958); Farnsworth v. United States, 98 U.S.App.D.C. 59, 232 F.2d 59, 62 A.L.R.2d 423 (1956); United States v. Morgan, 222 F.2d 673 (2d Cir., 1955); Haywood v. United States, 127 F.Supp. 485 (S.D.N.Y.1954).
We remand for a hearing because we cannot find as a matter of law that, even assuming petitioner’s contentions to be true — i. e., that statements and gestures were made by the judge which are not reflected in the transcript — they are insufficient to establish that his guilty plea was coerced. These statements and gestures, if in fact made but not accurately recorded, may be considered by the District Court in determining whether a threat or promise sufficient to make out a prima facie case of coercion 2 has been established.
For much the same reasons, we cannot adopt appellant’s argument that a hearing is unnecessary and that the court below should be reversed and the prisoner discharged on the theory that the State’s version of the facts establishes coercion as a matter of law. The stenographic transcript of the conference in chambers reveals that the trial judge informed appellant that if he chose to go to trial he would receive a fair one, that the chances of his being acquitted were “not too good,” that if he was convicted he “might” have to be sent away for the rest of his life (appellant was 24 years old and the maximum sentence for robbery in the first degree, one of the four crimes charged, was in this case 60 years), and that if he entered a guilty plea to the lesser offense he would “have some opportunity of receiving a shorter sentence” through the judge’s consideration for his desire to “start a new life” for himself. The trial judge stated that “I make you no promise as to your sentence * * and on some six occasions he emphasized that the decision as to whether or not to enter the guilty plea was completely in the hands of appellant and that he, the judge, was not telling him what to do. Appellant was at all times assisted by experienced counsel who in fact commended the judge for his fairness in considering the plea and who thanked the judge after the plea was entered and accepted in the courtroom. [314]*314The' record shows that while entering his plea,- the appellant acknowledged that no promises had been made to induce him to so plead; this is evidential on the issue of voluntariness, although not conclusive, see United States v. Tateo, 214 F.Supp. 560, 564 (S.D.N.Y.1963). It is corroborated by the judge’s statement in open court, on some four occasions, that the prisoner’s guilty plea would expose him to a long term of imprisonment,
We cannot say that as a matter of law the only reasonable inference which the cold transcript supports is one of involuntariness in the entering of the guilty plea.3 The mere explanation to the prisoner of the alternatives before him cannot be viewed as improper coercion on the part of the judge; any coercion sensed by the prisoner may well have emanated from the realities of the situation, wholly apart from what happened in chambers. The appellant’s predicament — the grave risk of the mandatory higher sentence for the recidivist convicted of first degree robbery — had on several occasions been explained to him by his attorney, and the consequences of conviction on this offense could largely have been deduced from a simple examination of the relevant sections of the penal code. We read the judge’s remarks not as an enticement or threat by means of a prior commitment by the judge to the prisoner’s sentence, but as merely a fair description of the consequences attendant upon the prisoner’s choice of plea, a description which was manifestly essential to an informed decision on the part of the prisoner. See, e. g., Long v. United States, 290 F.2d 606 (9th Cir., 1961); Jones v. United States, 279 F.2d 652 (9th Cir.), cert. denied, 364 U.S. 875, 81 S.Ct. 120, 5 L.Ed.2d 97 (1960) ; Brown v. Smyth, 271 F.2d 227 (4th Cir., 1959) ; Decatur v. Hiatt, 184 F.2d 719 (5th Cir., 1950); Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667, 670 (concurring opinion), cert. denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945); United States v. Tateo, 214 F.Supp. at 567 (dictum); United States v. Monti, 100 F.Supp. 209 (E.D.N.Y.1951). The District Court,, after a hearing, may well conclude that the appellant and his trial attorney had a hope or expectation that a lighter sentence would be imposed; but it is well settled that a mere disappointed expectation of leniency, as opposed to an understanding with the trial judge, is not sufficient cause to vitiate a plea. See Futterman v. United States, 91 U.S.App.D.C. 331, 202 F.2d 185 (1952); United States v. Lowe, 173 F.2d 346 (2d Cir.), cert. denied, 337 U.S. 944, 69 S.Ct. 1499, 93 L.Ed. 1747 (1949) ; Monroe v. Huff, 79 U.S.App.D.C. 246, 145 F.2d 249 (1944). A hearing, at which time the habeas court may call the participants to the conference in chambers — the appellant, his attorney, the district attorney, the trial judge, if necessary, the court stenographer and other officers— may well unearth facts as to the surrounding circumstances and unrecorded comments or gestures which point to an opposite conclusion. We are mindful that time dulls the memory of some and ignites the fancy of others. How this will affect the case presented by the appellant, who has the burden of proof at the hearing, Walker v. Johnston, 312 U.S. at 286, 61 S.Ct. at 579, 85 L.Ed. 830; Johnson v. Zerbst, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), is for the District Court to decide.
[315]*315Cases of the type before us place great burdens upon the already strained trial and appellate machinery of the federal courts. State cases of ancient vintage, with prosecution witnesses frequently inaccessible of mind or body, are presently being reviewed by the federal judiciary and returned to the state courts for new trials because of a failure of “due process” in the original proceedings. This can only cause frustration to the trial judge, the prosecutor and indeed to the federal district judge. But this frustration cannot justify ignoring the mandate given us by the Supreme Court, particularly in the recent cases of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), to reexamine these cases where proper .and to bring them to hearing if the petitioner’s allegations and the record require a thorough inquiry as to the merit .of his charges. I do not, however, share with my brother Friendly a concern for what he predicts will be an opening of the floodgates for prisoners’ petitions as a result of our holding today. For we shall still assume that the District Court will view with a jaundiced eye any mere allegation, without more, that stenographic minutes of a proceeding are inaccurate ; we do not hesitate to hold that this by itself is insufficient to necessitate a hearing. It is simply that the unusual circumstances presented by this case raise — only by the barest of margins —a triable issue which warrants what may well be sui generis treatment.
We are grateful to Robert V. Zener, Esq., who, as assigned counsel for appellant, has most ably and conscientiously represented him in the preparation and presentation of this appeal.
We therefore reverse and remand for a hearing.