*1 McMANN, WARDEN, et RICHARDSON al. al. et

No. Argued 153. February 24, May 1970 Decided 4, 1970 of New Attorney General Soloff, Assistant Brenda *2 on her With petitioners. for cause argued York, Sam- General, Attorney Lefkowitz, J. Louis were briefs and General, Attorney Assistant Hirshowitz, First A. uel Attorneys Juviler, Assistant Amy Cohen Z. Lillian General. re- for cause argued Oberman White

Cretchen Brodsky Grace L. were the brief on her With spondents. Finkel. Kalman Court, argued of leave Juviler, special by R. Michael County York New Attorney of District for cause him on brief With reversal. urging curiae amicus as S, Gershman. L. Bennett se, and Hogan, pro Frank were Civil American for a brief filed L. Melvin Wulf affirmance. urging curiae as amici et al. Union Liberties Court. of the opinion delivered White Mr. Justice 396 granted, we certiorari, which for petition The judg- separate three reversal seeks (1969), 813 S.U. Circuit for Second Appeals the Court ments filed corpus habeas for petitions hearings ordering issue principal The case.1 in this respondents an otherwise extent what and to us is whether before pro- in collateral impeached may be valid moti- plea was proof by assertions ceedings ourselves findWe confession. aby vated Appeals. Court with disagreement substantial 1 respondent, a fourth also included certiorari grant of Our n. See corpus, Wilbert Ross. habeas for petitioner another subsequent suggestion of a consideration However, upon infra. Appeals’ vacated the Court death, we of Ross’ by reason mootness Dis the Eastern for to the District remanded judgment for habeas petition to dismiss directions York of New trict (1969). 118 U. S. corpus as moot.

I The three respondents now before us are Dash, Rich- ardson, and Williams. We first state the essential facts involved as to each.

Dash: In February 1959, respondent Dash was charged with first-degree robbery which, because Dash had pre- viously been convicted of a felony, was punishable by up to years’ imprisonment.2 After pleading guilty to robbery in the second degree in April, he was sentenced to a term of eight to years as a second- felony offender.3 His petition for collateral relief in *3 the state courts in 1963 was denied without a hearing.4 2N. Y. Penal Law 2125, § then in effect, provided that first-degree robbery punishable was by imprisonment for an indeterminate term the minimum of which was to be not less years than 10 and the maximum of which was to be not more years. than 30 Under N. Y. Penal Law 1941, 1, § subd. then in effect, conviction for a second felony was punishable by imprisonment for an indeterminate term with the minimum one-half the maximum set for a first con viction and the maximum twice the maximum set for a first conviction.

In addition to the first-degree robbery charge, Dash was also charged grand with larceny and assault. 3Waterman and Devine, two men accused of taking part in the robbery along with Dash, plead did not guilty; after jury a trial they were convicted of first-degree robbery, second-degree grand larceny, and second-degree assault and were sentenced to 15 to 20 years’ imprisonment. On appeal these convictions were reversed because of the State’s use of post-indictment given confessions by one of the defendants in the absence of People counsel. v. Water man, 12 App. Div. 2d 84, 208 N. Y. S. 2d 596 (1960), aff’d, 9 N. Y. 2d 175 N. E. 2d 445 (1961). Waterman and Devine then pleaded guilty to assault in the second degree and were sentenced imprisonment for years. to 3 2% 4 The denial of relief was affirmed h}*- Appellate Division of the New York Supreme Court, People v. Dash, 21 App. Div. 2d 978, 252 N. Y. S. 2d 1016 (1964), aff’d mem., 16 N. Y. 2d 493, 208 N.E. 2d 171 (1965). District States United in sought was then

Relief his where York New of District Southern for Court plea guilty his alleged corpus habeas for petition of and confession a coerced of product illegal was if sentence 60-year impose threat judge’s trial petition His guilty. of not plea after convicted counsel, refused beaten, been he had asserted confession his prior charges false threatened off-the- an during made threat judge’s trial court appearances Dash’s one colloquy record as also Dash guilty. his date advised attorney had court-appointed serted due a chance “stand did Dash since pleading District The him. signed” alleged because hearing without petition denied counsel advice entered voluntary “a defects nonjurisdictional of all a waiver constitutes defend against proceedings stage any prior McMann, rel. Glenn ex States United citing ant,” S. 383 U. denied, cert. 1965), 2d Cir. A. (C. 2dF. of coercion allegation The cases. other (1966), since hearing for a not call did judge trial by the cate court state affidavit an filed had prosecutor *4 threatened ever judge trial denying gorically Appeals the Court appealed then Dash defendant. Circuit. for the Second indicted Richardson Respondent Richardson: attor- Two degree. first in the murder for April He ini- Richardson. represent assigned were neys his July withdrew but pleaded tially spe- degree, second in the murder pleaded victim he struck the time at admitting cifically sentenced convicted He was knife. without denial Following life. years term in the relief collateral for application hearing state courts,5 Richardson filed his petition for habeas corpus in the United States District Court for the Northern District of New York, alleging conclusory fashion that his plea of guilty by induced a coerced ineffective court-appointed counsel. His petition was denied without a hearing, and he appealed to the Court of Appeals for the Second Circuit, including with his appellate brief a supplemental affi- davit in which he alleged that he was beaten into con- fessing the crime, that his assigned attorney conferred with him only 10 minutes prior to day the plea of guilty was taken, that he advised his attorney that he did not want to plead guilty to something he did not do, and that his attorney advised him to plead guilty to avoid the electric chair, saying that “this was not the proper time to bring up the confession” and that Richardson “could later explain by a writ of habeas corpus how my confession had been beaten out of me.”

Williams: In February 1956, respondent Williams was indicted for five felonies, including rape and robbery. He pleaded guilty to robbery in the second degree in March and was sentenced in April to a 7y2 term of to 15 years. After unsuccessful applications for collateral relief in the state courts,6 he petitioned for a writ of habeas corpus in the United States District Court for the Southern District of New York, asserting that his plea was the consequence of a coerced confession and was made without an understanding of the nature of the

5The denial of relief was affirmed without opinion, by the Appellate Division of the New York Supreme Court, People v. Richardson, 23 App. Div. 2d 969, 260 N. Y. S. 2d (1965). 6The denial of relief on the claims later presented in the Federal District Court was affirmed opinion without by the Appellate Division of the New York Supreme Court, People v. Williams, 25 *5 App. Div. 2d 620, 268 N. Y. S. 2d 958 (1966).

764 petition his In plea. of consequences and

charge made were allegations it, supporting documents and inter being while desk ato handcuffed had been he that physi and pistol a with threatened was that rogated, him to advising attorney, his that and abused, cally represented and defense alibi his ignored guilty, plead rather charge misdemeanor atobe his that with was denied petition The charge. felony to a than appealed. and Williams hearing a out reversed Circuit the Second for Appeals of Court The three six dividing and banc en sitting case, in each and Williams' of Richardson's disposing case7 Dash's case each panels.8 three-judge by in decisions cases for petition on held hearing a that directed was that view Appeals’ of Court It was corpus.9 habeas A. (C. 1016 McMann, F. 2d 7 409 Ross v. rel. ex States United with also opinion dealt Appeals’ of 1969). Court The Cir. 2d corpus without habeas of a denial from Ross of Wilbert appeal District Eastern for the Court District States by United hearing 1955 his alleged that petition habeas his Ross York. of New by State’s induced was murder second-degree plea of Court The confession. unconstitutionally obtained an possession hearing entitled was Dash, Ross that, like held Appeals in this dealt respondents the three Along with claims. his sub matter to Ross but as certiorari granted we opinion, Ross. the death after moot as dismissal for sequently remanded supra. n. See 48 2d McMann, F. 408 v. rel. Richardson ex States United Follette, v. Williams ex rel. States 1969); United Cir. 2d (C. A. 1969). Cir. (C. 2dA. 2d 658 408 F. hearings in Appeals ordered Court day same The without court, banc en cases, the Richardson Dash aof case in the required hearing was dissent, held a trial after pleaded who had corpus habeas for petitioner in evidence —the admissible judge ruled allege corpus did not habeas for petition found that Appeals infected guilty was specificity with sufficient Rosen rel. ex United States confession. allegedly 1969). (C. 2d Cir. A. 2d Follette, F.

765 plea of guilty is an effective waiver of pretrial irregu- larities only if the plea is voluntary and that a plea is not if voluntary it is the consequence of an con- involuntary fession.10 That the petitioner represented by coun- sel and denied the existence of coercion or promises when plea tendering does not foreclose a hearing on his petition for habeas corpus alleging matters outside the state court record. Although conclusory allegations would in no case suffice, the allegations in each of these cases concerning the manner in which the confession was coerced and the connection between the confes- sion and plea were deemed sufficient require a hearing. The law required this much, the Court of Appeals thought, at least in New York, where to Jackson Denno, v. 378 U. S. 368 (1964), consti- tutionally acceptable procedures were unavailable to a to test the voluntariness of his confession. The Court of Appeals also ordered a hearing each case for reasons other than that the plea was claimed to rest on a coerced confession which the defendant had no adequate opportunity to test in the state courts. the Dash case, the additional issue to be considered was whether the trial judge coerced the guilty plea by threats as to the probable sentence after trial and conviction on of not guilty; Richardson, the additional issue was the inadequacy counsel allegedly arising from the

10The majority and concurring opinions in the Dash case relied on decisions in several other circuits: United States ex rel. Collins v. Maroney, (C. 382 F. 2d 547 A. 3d 1967); Cir. Cunningham, Jones v. 297 F. (C. 2d 851 A. 4th 1962); Cir. Smith v. Wainwright, 373 F. (C. 2d 506 A. 5th 1967); Carpenter Cir. v. Wainwright, 372 F. 2d (C. 940 A. 5th 1967); Cir. Bell Alabama, v. 367 (C. F. 2d 243 A. 5th 1966), Cir. denied, cert. 386 S. U. 916 (1967); Reed v. Hender son, 385 F. (C. 2d 995 A. 6th 1967); Cir. Smiley Wilson, F. 2d (C. A. 9th 1967); Cir. Doran v. Wilson, 369 F. 2d (C. A. 9th 1966). Cir. advice counsel’s of consultation period short after raised could issue effect ques- Williams, additional guilty; *7 Wil- to consider counsel of failure alleged was tion he clear make to defense alibi liams’ misdemeanor. ato than felony rather to a pleading II prop- is holding Appeals’ of Court of the core The is plea guilty a proceeding in a collateral if osition confession— a coerced triggered been have shown con- no been there had plea been have if there coming in cases at least vulnerable is plea fession—the taken where York New from agree unable areWe Denno, supra. v. Jackson proposition. this on Appeals with rests normally a after A conviction he open court admission own defendant’s Brady charged. he which the acts committed States, McCarthy United v. ante, 748; States, at v. United be may not admission That (1969). 459, 466 U. S. of trial— a waiver also plea is and since compelled, a provides,11 otherwise law applicable unless any admissibility contest right waiver the de- against offered might State evidence suffi- “done with act intelligent an must fendant- —it likely circumstances relevant awareness cient ante, States, 748. at Brady United consequences.” challenge the permits to. now law York New appeal from hearing and to pretrial ain admissibility a confession if the even admissibility of the ruling on the adverse an Proc. Crim. Code N. Y. guilty. plea, of on a based conviction provision 1965). A 16, similar July (effective 1969) (Supp. 813-g § Amend ruling on Fourth adverse an appeal a defendant permits 813-c Proc. Crim. § Y. Code N. guilty. plea of after claim ment 1962). April 1969) (effective (Supp. For present we purposes, put aside those cases where the defendant has his own reasons for pleading guilty wholly aside from the strength of the case against him as well as those cases where the defendant, although would have gone to trial had he thought the State could prove case, its is motivated by evidence against him independent of the confession. In these cases, as the Court of Appeals recognized, the confession, even if coerced, is not a sufficient factor in the plea to justify relief. Neither do we have before us the uncounseled defendant, see Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 (1956), nor the situation where the cir cumstances that coerced the confession have abiding impact and also taint the plea. Cf. Chambers v. Flor *8 ida, 309 U. S. 227 (1940). It is not disputed that such a cases plea guilty is properly open to challenge.12

The issue on which we differ with the Court of Appeals arises in those situations involving the counseled de- fendant who allegedly put would the State to proof its if there was a substantial enough chance of acquittal, who would do so except for a confession that might be offered against him, and who because of the confession decides to plead guilty to save himself the expense and agony of a trial and perhaps also to min-

12Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116 (1956), involved a plea of guilty by made a defendant without assistance of counsel. Herman did not hold that a plea of guilty, by offered a defendant assisted by competent counsel, is invalid whenever by induced prosecution’s possession of a coerced confession. Likewise, Chambers v. Florida, 309 U. S. 227 (1940), does not support position by taken the Court of Appeals in these cases. In Chambers the voluntariness of the confessions was properly considered this Court both because the alleged coercion produc ing the confessions appeared to carry over to taint the guilty pleas and because the convictions were based on the confessions as well as the guilty pleas. See Chambers v. State, 136 Fla. 568, 187 So. 156 (1939), rev’d, 309 S.U. 227 (1940). con- After imposed. be might penalty

imize a entitled defendant ais plea, a such on viction accepted, are claims factual if his relief and hearing, con- his alleges corpus for habeas petition his when his motivated and fact inwas fession more proves and alleges he if not think We plea? this. than

Ill deems who defendant dealing are we Since him against case State’s crucial confession his chances his thought he if trial togo would who and guilty plead decision his good, were acquittal con- his allow will law thinks he whether on turns who defendant For him. against used fession unusable hence and involuntary confession his considers would guilty tendering trial, aat him against sensible The alternative. improbable most seem con- his on prevail guilt, contest tobe course in a necessary, if or, appeal, on trial, at claim fession however acquittal, win proceeding, collateral York New of cases full are books The be. might he choice this made has elsewhere, where pleads nevertheless If prevailed. has which blamed hardly be can *9 part proper no and evidence inadmissible view his evidence by hypothesis Since case. State’s defendant weak confession from aside such plea plead, own his reasons has his present refusal than less nothing circumstances instance— first in the court state claims federal any, if benefits, to take choice coerced-con- his pursue then aof alle- Surely later proceedings. collateral claim fession involuntary his rendered gations bypass plain whether incredible, appear of state remedies was an intelligent act depends on whether he was so incompetently advised by counsel concerning the forum in which he should first present his federal claim the Constitution will afford him another chance to plead.

A more credible explanation for a plea of guilty by a defendant who would go to trial except for his prior confession is his prediction that the law will permit his admissions to be used against him by the trier of fact. At least the probability of the State’s being per- mitted to use the confession as evidence is sufficient to convince him that the State’s case is too strong to con- test and that a plea of guilty is the most advantageous course. Nothing this train of events suggests that the defendant’s plea, as distinguished from his confes- sion, is an involuntary act. His later petition for col- lateral relief asserting that a coerced confession induced his plea is at most a claim that the admissibility of his confession was mistakenly assessed and that since he was erroneously advised, either under the then applica- ble law or under the law later announced, his plea was an unintelligent and voidable act. The Constitution, how- ever, does not render pleas of guilty so vulnerable.

As we said in Brady v. United States, ante, at 766-757, the decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State’s case. Counsel predict must how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant’s guilt? On those facts would evi- dence seized without a warrant be admissible? Would *10 volun- confession a find facts those on fact of trier

the be cannot these like Questions admissible? tary guilty plead to decision a yet certitude; with answered uncertain answers, counsel’s upon rest necessarily must risk inherent the entails trial Waiving be. may they as compe- reasonably aof evaluations good-faith that toas either mistaken be to out turn will attorney tent on be might judgment a court’s what toas or facts facts. given not is made intelligently be must plea guilty a That defendant’s by offered all advice that requirement a post- a examination retrospective withstand lawyer serious to continue Courts hearing. conviction of admissibility on themselves among differences standard proper to respect with evidence, both respect judged be are facts which That facts. particular standard application inadmis- confession defendant’s a hold might this hardly vote, divided by a possibly evidence, sible attorney defendant’s conclusion a justifies the admis- thought when ineffective incompetent a advise sufficiently probable confession sibility of guilty. plea based guilty plea defendant’s view our plea intelligent an advice competent reasonably may have counsel ground on the to attack open con- defendant’s admissibility of misjudged unintelligent guilty Whether fession.13 by a motivated when vulnerable therefore aon conviction, based whether here consider do not We pleading permitting a State entered (as in admissibility his confession appeal challenge on open supra), would 11, 1965, n. see July after York New grounds on the proceedings corpus habeas federal to attack Rogers v. rel. ex States United Cf. coerced. the confession 1967). 2d Cir. (C. A. 2dF. Warden, 381 *11 erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retro- spectively consider counsel’s advice to be right or wrong, but on whether that advice was the range of com- ¿within petence demanded of attorneys in criminal On the casesTJ one hand, uncertainty is inherent in predicting court decisions; but on the other hand defendants facing felony charges are entitled to the effective assistance of com- petent counsel.14 Beyond this we think the matter, for the most part, should be left to the good sense and discretion of the trial courts with the admonition that if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.

IY We hold, therefore, that a defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a hearing on peti- tion for habeas corpus. Nor do we deem the situation substantially different where the defendant’s entered prior to Jackson Denno, 378 U. S. 368 (1964). At issue in that case was the constitutionality of the New York procedure for determining the voluntariness of a confession offered in evidence at a jury trial. This

14Since Gideon v. Wainwright, 372 U. S. 335 (1963), it has been clear that a defendant pleading guilty to a felony charge has a right federal to the assistance of counsel. See White v. Maryland, 373 U. S. 59 (1963); Arsenault v. Massachusetts, 393 U. S. 5 (1968). It has long been recognized that right to counsel is right to the effective assistance of counsel. See Reece v. Georgia, U. 85, S. 90 (1955); Glasser v. United States, 315 U. S. 60, 69-70 (1942); Avery v. Alabama, 308 U. 444, S. 446 (1940); Powell v. Alabama, 287 U. S. 57 (1932). applicable been which

procedure, trial required trial, gone had they if respondents prima offered when judge, submit established, voluntariness case facie *12 dis- resolving finally himself without jury the to issue not or whether determining and of fact issues puted this held Court voluntary. The was the confession a “afford not did it because unconstitutional procedure con- of the voluntariness the of determination reliable adequately trial, did the at evidence offered fession based conviction a free of be to right Jackson’s protect with- cannot therefore and confession coerced upon Clause Process Due the under attack constitutional stand 377. at S.,U. 378 Amendment.” Fourteenth the Stein overruled the Court conclusion, reaching approved had which (1953), York, U. S. New v. practice. York New the after before entered was plea guilty Whether- validity of the Denno, question v. Jackson and voluntary was same: remains previously As we defendant? act intelligent subject is not court in a state a plea out, set ground on court a federal attack collateral unless by a motivated attorney. advised incompetently defendant relief based claim successfully respondents For gross demonstrate must Denno, each v. Jackson on recommended when of counsel part error to trial going instead plead determining for procedures York New challenging cannot showing Such confessions. admissibility presented challenge was this precisely for made, York, New in Stein Court this courts York New constitutional found this supra, infirmity in the New York procedures for dealing with coerced-confession claims. Counsel for these respondents cannot be faulted for not anticipating Jackson v. Denno or for considering the New York procedures to be as valid as the four dissenters in that case thought them to be. We are unimpressed with the argument that because the decision in Jackson has been applied retroactively to defendants who had previously gone to trial, the de- fendant whose confession allegedly caused him plead guilty prior to Jackson is also entitled to a hearing on the voluntariness of his confession and to a trial if his admissions are held to have been coerced. A convic- tion after trial in which a coerced confession is intro- duced rests in part on the coerced confession, a con- stitutionally unacceptable basis for conviction. It that conviction and the confession on which it rests *13 that the defendant later attacks in collateral proceed- ings. The defendant who pleads guilty is in a different posture. He is convicted on his counseled admission in open court that he committed the crime charged against him. The prior confession is not the basis for the judgment, has never been offered in evidence at a trial, and may never be offered in evidence. Whether or not the advice the defendant received in the pre-Jackson era would have been different had Jackson then been the law has no bearing on the accuracy of the defend- ant’s admission that he committed the crime.

What is at stake in this phase of the case is not the integrity of the state convictions obtained on guilty pleas, but whether, years later, defendants must be permitted to withdraw their pléas, which were perfectly valid when made, and be given another choice between admitting their guilt and putting the State to proof. its It might be suggested that if Jackson had been the law when the pleas in the cases below were made —if the judge chal- of voluntariness on rule required been

had been have would a trial —there at confessions lenged jury from confessions keeping of chance better because But pleas. guilty no been have would there and is a this advice, guilty-plea uncertainty inherent of and case particular any matter speculative highly evi- productive and meaningful promising issue an plea. entry after long hearing dentiary rule constitutional se per abe would alternative The moti- were that pleas York New all invalidating entered were and by confessions vated invasion improvident an This Jackson. guilty- finality maintaining interests the State’s constitutional under valid were convictions plea denigration It time. at applicable standards when hold trial right guilt, his admits and remedies court state his waives he further, existing; then law under so does he his either error ordinary risk assumes Al- facts. and law of the assessment attorney’s his de- later had differently pleaded might he though his bound he law, been then cases cided serious prove allege can unless conviction his show sufficient counsel part derelictions act. intelligent knowing all, after not, *14 Y below each case indicated, previously weAs required was hearing that ruled Appeals Court claim than other claims consider entered aon rested these respect With Denno, supra. Jackson with disagreement express now claims, we other hold- our since but Appeals; Court judgments for habeas petitions reassessment require will ing corpus in the light of the standards expressed herein, the judgments of the Court of Appeals are vacated and the case is remanded to that court for further proceedings consistent with this opinion.

It is so ordered. Mb. Justice Black, while still adhering to his separate opinion in Jackson v. Denno, 378 U. S. 368, 401-423, concurs in the Court’s opinion and judgment in this case. Mr. Justice with whom Mr. Brennan, Justice Douglas and Mr. Justice Marshall join, dissenting. In this case the Court yet moves another step toward the goal of insulating all guilty pleas from subsequent attack no matter what unconstitutional action of gov- ernment may have induced a particular plea. Respond- ents alleged in some detail they were subjected to physical and mental coercion in order to force them to confess; they succumbed to these pressures; and that because New York provided no constitutionally acceptable procedures for challenging the validity of their confessions in the trial court they had no reason- able alternative to pleading guilty.1 Respondents’ con- tention, in short, is their pleas were the product of the State’s illegal action. Notwithstanding the pos- sible truth of the claims, the Court holds that respondents are not even entitled to a hearing which would afford them an opportunity to substantiate their allegations. I

1There are additional allegations involved in this case, includ ing Richardson’s claim that he was ineffectively represented by counsel when he entered and Dash’s contention that he threatened the trial judge imposition of the statutory maximum (60 sentence years) if he elected to stand trial and did prevail. I understand that the Court does not disturb the Appeals’ holding that a hearing required to consider these allegations. additional

776 the by reached result the clear it is for agree, cannot decisions prior with only not inconsistent Court by adopted position with also but Court this of on spoken has appeals of court every

virtually issue.2 this

I enun- case this applicable principle basic The Pennsyl- Black by Mr. Justice Court for ciated 118 S.U. 350 Claudy, v. Herman rel. ex vania plea aon or trial following conviction “[A] (1956): or violence by extorted confession aon based guilty Due Federal under invalid coercion mental formulation in this factor critical The Clause.” Process not valid are pleas guilty entered convictions is that A confessions. on” “based are they if therefore must plea to overturn seeks who interrelationship a sufficient existence demonstrate the antecedent plea between nexus or State's by the infected be said bemay so invalidate Thus action. illegal a coerced existence mere than shown must more Court decision 2 deny that does The deci harmony complete case is instant Appeals same considered courts other numerous sions (C. 5thA. 154 2dF. Beto, 415 v. g., Moreno See, e. issues. similar 2d 853 Rundle, F. 402 v. McCloud rel. ex States 1969); United Cir. Cir. 6th (C. A. 136 2dF. Green, 387 v. 1968); Kott Cir. (C. A. 3d 1967); Cir. (C. 6thA. 995 2dF. Henderson, 385 v. 1967); Reed (C. 3dA. 547 2dF. Maroney, 382 v. Collins rel. ex States United ; 1967) Cir. (C. A. 9th 144 2d Wilson, F. 378 Smiley v. 1967); Cir. 1967); Cir. 5th (C. A. 940 2dF. Wainwright, 372 v. Carpenter v. 1966); White Cir. 9th (C. A. 505 F. 2d Wilson, 369 v. Doran Hale, Zachery v. 1965); Cir. (C. 4thA. 470 2dF. 352 Pepersack, rel. ex States 1968); United Ala. D. M. (D. C. 237 Supp. F. People 1966); Pa.D.E. (D. C. Supp. 647 Rundle, 258 F. v. Cuevas Commonwealth (1967); 2dP. 158, 424 2d Cal. Spencer, v. (1968). 2dA. 306, 237 Pa. Baity, 428 *16 confession. The Court of Appeals so held; respondents do not disagree. The critical question, then, is what elements in addition to the coerced confession must be alleged and proved to demonstrate the invalidity of a guilty plea.

The Court abruptly forecloses any inquiry concerning the impact of an allegedly coerced confession by decree- ing that the assistance of “reasonably competent” counsel insulates a defendant from the effects of a prior illegal confession. However, as the Court tacitly concedes, the absolute rigor of its new rule must be adjusted to accom- modate cases such as Chambers v. Florida, 309 U. S. 227 (1940). In that case, the four defendants confessed. Subsequently, three of them pleaded guilty, while the fourth pleaded not guilty and was tried before a jury. Each of the defendants, represented by counsel, stated during the trial that he had confessed and was testifying voluntarily.3 Notwithstanding this testimony in open court, the proffering of guilty pleas, and repre- sentation by counsel, the state courts and this Court as well properly permitted a collateral attack upon the judgments of conviction entered on the guilty pleas. *17 prejudice to continue may coerced the of re- decisions his influence unfairly case a defendant’s alternatives. legal his

garding Her- rel. ex Pennsylvania in approach our Moreover, inconsistent is (1956), S.U. Claudy, v.man today. We adopts the Court that rule absolute the of circumstances the all whether, under considered there defendant the bear to brought pressures the case, the con- aof extraction the including State, the by involun- render to sufficient were fession, assisted not was defendant the that fact the While tary. determining weight considerable given counsel by considera- critical sole hardly it was involuntariness, Claudy distinguish attempt Court’s Thus tion. unpersuasive. alone assistance counsel’s basis on the adopted approach adhere continue I would all account into take and Claudy Chambers than rather a plea entry surrounding the circumstances counsel. presence significance talismanic attach Brady v. Carolina North Parker concluded I concept legal “the 802, that at States, post, United but confined narrowly been has ‘involuntariness’ influenced rights constitutional a surrender refers prop- cannot government considerations by Parker In process. pleading into introduce” erly introduced factor” “impermissible Brady penalty death unconstitutional an government con- a coerced influence improper here scheme; establish must event either fession. infected actually influence unconstitutional pleading process, awas significant factor in his decision to plead guilty. But if he does so, then he is entitled to reversal of the judgment of conviction entered on the plea.

Harrison v. United States, 392 U. S. 219 (1968), lends additional support to this conclusion. There confes- sions had been illegally procured from a defendant and then introduced at his trial. At a new trial, after reversal of the defendant’s conviction, objected to the introduction of his testimony from the previous trial on the ground that he had been improperly induced to testify at the former trial by the introduction of the inadmissible confessions. We sustained this contention, noting part

“the petitioner testified only after the Govern- ment had illegally introduced into evidence three confessions, all wrongfully obtained, and the same *18 principle that prohibits the use of confessions so pro- cured also prohibits the use of any testimony im- pelled thereby fruit of the —the poisonous tree, to invoke a time-worn metaphor. For the ‘essence aof provision forbidding the acquisition of evidence in a certain way is that not merely evidence so ac- quired shall not be used before the Court but that it shall not be used at all.’ Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392.

“. . . The question is not whether the petitioner made a knowing decision to testify, but why. If he did so in order to overcome the impact of confes- sions illegally obtained and hence improperly intro- duced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.” 392 U. S., at 222-223. (Emphasis in original.) The same reasoning is applicable here. That if is, the coerced confession induces a guilty plea, that plea, no

780 priv- self-incrimination the surrender the than

less illegal the State’s fruit Harrison, is the in ilege attack.4 to vulnerable is thus conduct, concludes Harrison 4 in opinions dissenting of the Indeed, one plea of preceding confession inadmissible an “[similarly, that J., (White, 234 S., at U. 392 plea.” the taint that noted the suggestion, this response to dissenting). illegally prosecution the which in only a case here decide “we at him against evidence confession defendant’s introduced course, in 9. Of n. S., at 392 U. case-in-chief.” in its trial intro been had evidence in which a case consider didwe Harrison fruit-of-the- follows, however, that hardly It trial. at duced narrow from apart application no has rationale poisonous-tree Fahy v. generally See context. factual Harrison of the confines States, 371 v. United Wong Sun (1963); Connecticut, U. S. (1939). S. 338 States, U. v. United Nardone (1963); S. 471 U. instant- Harrison between differences factual are There analogy. For undermine insufficient they are case, but actually had confessions inadmissible Harrison example, no here defendant, whereas against proceedings used been confessions. of the use potential than involved is more extremely considered traditionally been However, confessions ordinary course and, in the material, evidentiary valuable would, its prosecution expected to be not events, it relevant introduce attempting from initiative, refrain own ground on the attacked plea is course, when Of confession. open always confession, involuntary by an induced it was confession, that was there establish prosecution decided had prosecution coerced, not any confession had communi- against use not to him. fact this cated itas case the instant clear as perhaps Moreover, it is subse- *19 the infected illegality prosecution’s the Harrison Har- In defendants. respective involving the proceedings quent the initially announced attorney had rison, defense the take fact did defendant testify, and defendant his confes- introduced had prosecution only after stand placed appropriately burden that circumstance sions. inadmis- inference clear rebut prosecution upon the contrast, in By testimony. subsequent induced confessions sible usually that are pleas dealing arewe case instant in which decision-making process aof culmination As in Parker and Brady the lays great stress upon the ability of counsel to offset the improper in- fluence injected into the pleading process by the State’s unconstitutional action. However, here again, the con- clusions that the Court draws from the role it assigns to counsel are, in my view, entirely incorrect, for it cannot be blandly assumed, without further discussion, that counsel will be able to render effective assistance to the defendant him freeing from the burdens of his unconstitutionally extorted confession.

In Parker and Brady there was no action that coun- sel could take to remove the threat posed by the uncon- stitutional death penalty scheme. There way, in short, to counteract the intrusion of an impermissible factor into the pleading process.

However, where the unconstitutional factor is a coerced confession, it is not necessarily true that counsel’s role is so limited. It is a common practice, for example, to hold pretrial hearings or devise other procedures for the pur- pose of permitting defendants an opportunity to chal- lenge the admissibility of allegedly coerced confessions. If it is assumed that these procedures provide a constitu- tionally adequate means to attack the validity of confession, then it must be expected that a defendant who subsequently seeks to overturn his guilty plea will come forward with persuasive explanation for his fail- ure to invoke those procedures which were readily avail- able to test the validity of his confession.

It does not follow from this that a defendant assisted by counsel can never demonstrate that this failure to has taken into account numerous factors. It can hardly therefore be established on the basis of allegations mere that, given case, a coerced confession induced the guilty plea. This factual difference indicates no more, however, than that respondents may here have a more difficult time than petitioner in Harrison in substantiating respective their claims.

782 The justified. procedures appropriate the

invoke the or waiver, a essentially, is, plea guilty aof entry known aof abandonment or relinquishment “intentional (1938). 464 458, U. S. Zerbst, 304 v. Johnson right,” his only not up gives the guilty pleading By 238 S.U. Alabama, 395 v. Boykin trial, jury ato right opportunity the jurisdictions, most in also, but (1969), by whatever confession his validity the challenge to always It purpose. that for provided are procedures guilty his that establish to a defendant to open not did that waiver, valid constitutionally a not to provided processes orderly the bypass deliberately Noia, Fay v. Cf. confessions. validity the determine there not or Whether (1963). 438-440 U. S. course, determined, of be can bypass deliberate a been has sur- circumstances total consideration aby only plea.5 each entry rounding II assumed I discussion foregoing method adequate constitutionally a provided has State trial invalid allegedly an challenge to respondents to applicable not assumption That court. Jackson held as we because, however, case, this New procedure (1964), S.U. Denno, 378 tendered were pleas their time at employed York means acceptable constitutionally provide to failed even Thus, of confessions. validity challenge are validity confessions challenging the for procedures If for then, justification persuasive adequate, constitutionally con fear from not arise does them invoke failure voluntary. be determined be otherwise, will erroneously or fession, an effective constitute could true, then were If this every is inherent result adverse error risk for waiver, every defendant open proceeding, criminal plea. induced risk this contend *21 most expert appraisal and advice by counsel necessarily had to take into procedure account a for challenging the validity of confessions that was fundamentally de- fective, but that had nevertheless been approved by this Court in Stein v. York, New 346 U. S. 166 (1953). Hence the advice of counsel could not rem- edy or offset the constitutional defect infused into the pleading process. Therefore, respondents are en- titled to relief if they can establish that confessions were coerced from them and that their guilty pleas were moti- vated in significant part by their inability to challenge the validity of the confessions in a constitutionally ade- quate procedure.6 By such a showing would they estab- lish a nexus between the coerced confessions and the subsequent pleas and thereby demonstrate their re- spective pleas were product of the State’s illegal action.

The Court seeks to avoid the impact of Jackson v. Denno upon pre-Jackson guilty pleas by adding a new and totally unjustified element to the Court’s confused pattern of retroactivity rules. Jackson v. Denno has been held to be retroactive, at least in the sense that requires hearings to determine the of pre- voluntariness Jackson confessions that were introduced at trial.7 The 6The Court of Appeals held that a of guilty was not volun tary “if the was substantially motivated a coerced confession validity of which [the was unable, defendant] prac for all purposes, tical to contest.” 409 2d, F. at 1023. I accept would this formulation with the understanding that a “substantial” moti vating any factor one which is merely de minimis. Ordi narily, a decision plead guilty is the result of numerous con siderations. long As as a defendant fact motivated in significant part by the influence of an unconstitutionally obtained confession that adequate had no means to challenge, I relieve him of consequences of his guilty plea. 7 See, g., e. Johnson v. Jersey, New 719, U. S. (1966) ; 727-728 Tehan Shott, v. 406, 382 U. S. 416 (1966); Linkletter Walker, v. 381 U. S. (1965). 20n. tois effect Jackson’s however, decides, today Court intro- in which to situations limited whatever application is to at trial duced held now Denno is Jackson short, pleas. novel wholly retroactive, a only partially to be result. unacceptable' basically are there opinion, Court’s I understand

As contention rejects why the reasons three infect unconstitutionally may defect *22 Jackson-Denno the formalistic highly the first is The process. pleading the con- antecedent the not plea, guilty that notion respondents. against judgments of the basis is the fession, that sense technical in the true is this course Of judgment of a basis legal always the is guilty argument However, this thereon. entered conviction contention of the adequately hardly disposes therefore induced, and partially at least was turn adequate constitutionally by the fact tainted, is preju- highly of a validity to test existed procedures confession. allegedly coerced dicial of the desire symptomatic is formalism Court’s The decision of a aspect motivational entirely the ignore when is present counsel long As as guilty. to plead willing apparently is Court pleads, any virtually inject may government assume plea. How- deciding process of into the influence in- Brady, this Parker and demonstrated as I ever, prosecu- which the factors with upon ignoring sistence departs pleads before he the defendant confronts tion the voluntariness manner which from the broadly In short, approached. been traditionally has pleas insists, whether as not, question the critical why plead guilty but decided to knowingly respondents States, United Harrison Cf. v. decision. made they (1968). 223 U. S. Secondly, the Court views the entry of the pleas as waivers of objections to the allegedly coerced con- fessions. For the reasons previously I stated, do not believe that pleas were legally voluntary if respond- ents’ allegations are proved. Nor were pleas relinquishment of a known right, for it was only when Stein v. New York, 346 U. S. 156 (1953), was overruled by Jackson v. Denno that it became clear that the New York procedure was constitutionally inadequate. Thus there is no sense in which respondents deliberately by- passed or “waived” state procedures constitutionally ade- quate to adjudicate their coerced-confession claims. See Moreno Beto, 2dF. (C. A. 5th Cir. 1969); cf. Smith v. Yeager, 393 U. S. 122 (1968).

Finally, the Court takes the position, in effect, that the defect in the Síein-approved New York procedure very great the procedure only —that a little bit unconstitutional —and hence that too speculative to inquire whether the difference between pre-Jackson post-Jackson procedures would, in a particular case, *23 alter the given advice by counsel concerning the desir- ability of plea. a If, indeed, the deficiency in pre- the Jackson procedure was not very great, then it is difficult to understand why we found it necessary to invalidate procedure the and, particularly, why it was imperative to apply the Jackson decision retroactively. I, for one, have never thought Jackson v. Denno is so that trivial, it deals procedural with of distinctions such insignificance that they would necessarily make no difference in the plea advice given to a by his attorney. To the contrary, the extent to which the constitutional defect in the pre-Jackson-Denno procedure actually infected the pleading process cannot be by determined a priori pronouncements by this Court; its rather, effect can be evaluated only after a factual inquiry into the circumstances motivating particular pleas. essen- is what contrary, the to disclaimers the Despite Brady in case instant the in both involved tially the of determination the than less nothing is

Parker judgments virtually all of sanctity the preserve to Court other is There pleas. of means by obtained partial of notion surprising the for explanation adequate ap- An propounds. today Court that retroactivity impli- clear to effect giving from shrinks that proach untenable drawing decisions our of cations furthers hardly it but appeal, its have may distinctions con- I am Thus, decisionmaking. principled goal in judge concurring agree to strained it that Appeals denigration indeed unfairness, and rankest “the infirmity recognize law, to rule challenging for procedure Denno v. pre-Jackson who prisoners case in the of a confession legality process judicial to access deny to but trial went merely pleaded improperly who those difficulty more have would state because 1027. 2d, at F. them.” trial new affording a render views my thought it Lest society protecting effective “less process criminal today live impossible made have who those against 219, 235 States, U. S. United Harrison safety,” only again emphasize I dissenting), J., (White, are respondents whether case this involved issue con- claims their hearing entitled as condemned we device procedural fessions con- their exercising from them deterred unconstitutional allegations these or not Whether rights. stitutional *24 individuals these for us, before not fact bases presenta- for forum judicial afforded been never circumstances, I In these claims. their tion their courthouse of the door shut simply slam faces.

III I agree with the Court of Appeals that a hearing required for the coerced-confession claims presented these cases. We have, of course, held that a post-con- viction hearing must be afforded to defendants whose alle- gations of constitutional deprivation raise factual issues and are neither “vague, conclusory, or palpably incredi- ble,” Machibroda v. United States, 368 U. S. 487, 495 (1962), nor “patently frivolous or false,” Pennsylvania ex rel. Herman v. Claudy, 350 U. S. 116, 119 (1956).8 Respondents have raised at least three factual issues the record in its present form does not resolve: (1) whether confessions were obtained from them; (2) whether these confessions, if given, were coerced; and (3) whether respondents justifiable had a reason for their failure to challenge the validity of the confessions— more specifically, whether the confessions, together with the Jackson-Denno defect in New York’s procedures, influenced significant part the decisions to plead guilty. As to each of these issues, respondents of course bear the burden proof.

Respondents alleged in some detail that they had been police into confessing. They also alleged the Jackson-Denno defect in the state procedures rendered futile any attempt to challenge the confessions in the state trial court.9 The Court of Appeals noted

8Respondents have never had a hearing in the state courts on their coerced-confession claims because the state rejected courts their contentions on the pleadings. In these circumstances, Court of Appeals properly instructed the District Court to afford the State a reasonable proceed time to with its own hearings, if it be so advised. 9 For example, respondent Dash stated the following in peti tion to the District Court: futility

“The of relator’s position is more clearly seen when this Court considers the fact, that only choice remaining to him— beside the entry of the of guilty to a crime that he had not *25 material, supporting additional case, ordinary the in

that, represented who attorney the from affidavit an as such corpus habeas his to appended be should petitioner, the the Court however, elaboration, Without petition. was corroboration material no that concluded Appeals case. in this necessary to impossible, not though difficult, it is sure, To peti- a evidence corroborative any without that believe sophisticated with succeed ultimately tioner confes- that a contention as the such argument induced defect, Jackson-Denno the with coupled sion, de- of the views connection, In this plea. his particularly are entered was attorney when fense is counsel case ordinary in the because important actually factors appraise to position good in a technical As a guilty. plead to the decision into entered absolutely not I would however, pleading, matter pro- one who particularly petitioner, require extensive petition se, accompany pro ceeding peti- for prudent of course It materials.10 supporting presented one as claiip such raise a who tioners counsel, from a statement append to case instant statement why such explanation an least at so do not does who petitioner for procured, challenging the hope to trial proceed committed —was only in For it was confession. alleged -coerced admissibility recognized . . . v. Denno Jackson the case decision York, faced with in New a defendant plight of insoluble viola- confession, had admissibility of a challenge the whether remedy had such Relator Constitution. States United of the tion this situation.” faced with when Jack- references contains similar petition Respondent Williams’ relates claim principal Richardson’s Respondent v. Denno. son He concedes him. afforded legal assistance of the adequacy in his decision no role played procedure pre-Jackson-Denno guilty. plead (1948). Johnston, 334 U. S. g., Price See, e. takes a considerable risk that *26 petition will be denied as vague, conclusory, frivolous.11

The respondents in this case clearly raised the Jack- son-Denno issue in their petitions District Court. Furthermore, this Court has not affected the judgment below insofar as requires hearings for these respondents on issues other than their coerced-confession claims. these I circumstances, would not portion disturb that the Court of Appeals’ order that requires the District Court to consider the merits of respondents’ coerced-con- fession allegations. I

Accordingly, would affirm the judgment of the Court

of Appeals. 11See, e. g., United States ex rel. Nixon Follette, Supp. F. (D.C.S.D.N.Y. 1969). In explication of Chambers, the Court notes coercive circumstances that compelled the confessions may “have abiding impact and also taint the plea.” Ante, at 767. Apparently the Court would permit a de- fendant who was represented by counsel to attack his conviction if collaterally he could demonstrate that coer- pressures cive were brought to bear upon him at the “[E]ach the defendants testified on the trial that the confes sions freely were and voluntarily made and that the respective statements of each upon made the trial was the free and voluntary statement of such defendant as a witness in his behalf.” Chambers v. State, 786, Fla. 792, 152 437, So. 438 (1934), on subsequent appeal, 136 Fla. 187 So. 156 (1939), rev’d, 309 U. S. 227 (1940). position This plead. called moment very however, agree, I cannot unexceptionable. certainly despite adequate constitutionally process pleading pres- coercive because merely confession ceased compelled sures impact” “abiding short, plea. entry of