*1 BIGGS, and MAX Before ADAMS ROSENN, Judges. Circuit THE COURT OPINION OF Judge. ROSENN, MAX Circuit pro appeal from a This is a deci se District sion States Jersey, denying New District of application petitioner-appellant’s pursuant 28 U. writ seq. Section 2241 et S.C. serving

Appellant term of im- life prisonment presently confined Trenton, Prison at the New State imposed on a sentence Monmouth February 2, County He Court on 1947. degree indicted for a first murder Adams, Judge, Circuit filed concur- September After a trial ring opinion. days, appellant withdrew three guilty

of not and entered vult.1 appeal

Appellant from direct took no conviction, application for ha- but eventually filed in the beas County It was denied Monmouth Court. pleading prescribes prevent pleas 1. New statute shal the accused in indictment non vult or nolo contendere murder. alia, statute, 2 A N.J.Statutes tlie same . inter dictment. provides “Nothing that: herein contained 113-3. *2 January opinion 16, 1964, proceedings in an which on the mur- charge. summary contains a of certain der (first hearing hearing). that While at important do reach the sub- summary records, tran- in the appellant stantive issues raised hearing appears script this be lost. of concerning plea district court his applied Subsequently, appellant in the since arewe with confronted thresh- post un- relief hold conviction of whether the court below Decem- had an der Rules. On record the New on which it (second hearing deny appellant’s application after a could ber for re- application post appellant’s hearing), lief. We find that it did not because At this transcript denied. unfortunate conviction loss during hearing, attorney hearing appellant’s his of the first and the appellant during testi- trial on indictment for murder crucial absence of the hearing transcript hearing. his second fied. A full this appears that in the record reveals Appellant raised a serious constitu appellant in the court was not application tional issue in his for habeas during testimony. appeal from An this charged in the district court. He judgment this was dismissed the New plea that his had been forced him.1a May Supreme Court only This contention could have been August 27, 1968, appellant by findings On filed an resolved To resolve fact. application fact, in the for habeas the issues of the district court “summary” Court turned States District first of the Jersey. pe- Appellant’s hearing, provided District of New first opinion which in the alleged judge presided tition that his indictment who hearing. conviction were a confession that based on produced beatings which had been judicial An examination of the sum- counsel; and denial of and that his first, mary opinion hearing -in the of the of non vult had been forced on him supplied only reveals that it facts those counsel in collusion with necessary which the court believed judge. court, the trial district in a appellant’s ap- substantiate its denial of opinion, appellant’s written found that peal corpus. for habeas this confession had not resulted from beat- summary prepared by ings counsel; or denial it that found hearing who conducted the and heard freely un- vult was do it we not believe that derstandably pe- and dismissed the could have formed a sufficient record tition. which the district could determine The district whether the court reached con- received by relying clusions full and fair on both state court by on the proceedings hearing, issues raised first him. United States ex Jennings provided opinion Ragen, which was 358 U.S. presided who hearing, 3 L.Ed.2d 296 fortifies transcript Supreme our conclusion since the Court appellant’s court, second there held law- district in deter- yer. mining above, regrettably corpus application As noted in a and in- explicably, appellant person- whether defendant’s was not confession had been ally present coerced, rely merely could not “on the second gave testimony pertain- opin- his trial facts and conclusions stated in the claim, claim, attorney 1a. Davis’ second that his collu- involuntary confession, judge, the result of sion with the forced him to plead guilty, fails to state a does a claim relief. Mc Richardson, Mann v. must be considered under McMann. L.Ed.2d His appellant Illinois” ion of the examining pro- in which his former Edward however, ceedings Appellant, state courts. testified. Jennings supplying a he read must as guideline holding in Townsend presid- shows that the *3 745, 293, ing Sain, 319, judge 372 the U.S. serious doubts about propriety the

760, allowing testimony in which 9 770 L.Ed.2d in the appellant.3 stated: of the absence These doubts were founded well but the never- court including the tran a [S]uch record— proceeded testimony. theless to take testimony (or script if unavailable testimony This not have al- should adequate substitute, such aas some personal- lowed the unless record), pleadings, court the narrative opinions, ly present presenta- required since it pertinent other docu and testimony tion a is- of oral on material indispensable determin

ments —is obviously petition- sue fact within the applicant re personal knowledge.4 pe- er’s When the and state-court evi ceived a full dentiary fair prisoner, a state this is titioner is also hearing resulting in reliable the rule for federal hear- findings. ex rel. See States ings. 275, Johnston, Walker 312 v. U.S. Jennings Ragan, (sic), 358 U.S. v. (1941). 574, 61 85 830 28 S.Ct. L.Ed. 296]; 321, L.Ed.2d 276 3 [79 applicable 2243 of the U.S.C. § Sain, 64 S. [79 v. Townsend provides, alia, statute inter that: 655, 634], Ct. L.Ed.2d 3 application for the writ Unless the imply transcript do We that a present only return issues the first re was essential for person di- law to whom the writ is proce view. There are other alternative produce required rected shall be completing dures and for re methods or person body de- constructing record a sufficient for (Emphasis supplied.) tained. appli an issues raised review the person applicant or detained The post cation for conviction relief. oath, deny any facts may, of the under Allen, Brown 344 f.n. U.S. allege any or set forth return (1952). 469 L.Ed. other material facts. do this hold that “adequate justification more an rule and the substitute” for the The foregoing transcript provisions il- of the statute is of the first proceeding. used In dis- thus should have been in this lustrated missing petition, district court district court as basis for facts su which it Townsend relied on relied. pra, counsel, Ed- appellant’s former S.Ct. 745.2 U.S. the role It touched on ward Juska. hearing might pro- The second petitioner’s the testi- counsel and the conclu- vided basis for concerning validity peti- mony sions reached the district court had presence— argued, be it must be in Developments 2. See Habeas Cor —Federal present.” has a be the defendant pus, 1125; Wright 83 Harv.L.Rev. Corpus Sofaer, & Habeas State Pris of Defendant Presence 4. NJRR 3:22-10. Finding oners: Allocation of Fact Hearing; Preference : Responsibility, 75 Yale L.J. 895 given pref- proceedings be shall “The promptly. A and be determined erence custody Evans, appellant’s re- 3. When discretion court’s quested permission from the court to call entitled to shall ha “I don’t stated: a material adduced hesitating oral so, am believe Mr. Evans. liis fact within me, just issue as I re- It seems to moment. supplied.) (Emphasis knowledge.” rule, if matter call factual ing procedure plea; . and it . . not ad- tioner’s confession (372 equate peti- .” on the failure of commented 759). evidence substan- S.Ct. at introduce tioner to negate the conclu- which would tiation Although the district court dealt ex- were, be, and drawn that could sions haustively with the constitutional issues coun- former from the brought petition it, this court stated: sel. district which it relied insuffi- cient, alleges independent above, the reasons as an [Petitioner form a the conclusions of basis for fact the undue influence which the court made. and his district inducing We have entire record examined the no he has introduced vult. on which the district court its reached *4 his substantiation for or evidence decision, no and we find other material claim remand, used, which could as a ba- another, attempt novo, by sis for de the circumstances, since Under and these petitioner’s district court to resolve this important in- issue of fact an was raised hearing. claim without charge volving petitioner’s that his trial no because record can be ob- [I]f collusion, judge, and in the trial way tained the district has no inducing his in used undue influence determining of a full and fair plea, presence petitioner the and the findings in which resulted testify an him to for vouchsafed, relevant fact was he must under the New statutes essential Sain, supra, hold Townsend v. one. intelligently knowingly and unless he 319, 83 at 760. present Petitioner was waived it. not testify. Al- are therefore, not We aware of onerous demands and though could assigned already lawyer made petitioner an overburdened dis- an court, proceeded and trict but condition and call because to nothing witness, that of the state-court record before that there is examine court, we constrained to remand this we to are have been able discover requi- ex- case to the district court for that reveals record of that hearing. by evidentiary press petitioner implied waiver site or right personally his to be judgment of the district court agree in are situations that there will be reversed. attorney must be to which an assumed Judge (concurring). ADAMS, Circuit authority certain measures have take client, consulting the ad- that a viola- without his “if I am concerned Because might system rights versary petitioner’s have function.”5 tion of Cir., might F.2d Alper, petitioner United States v. and that occurred (1971). claim, fully no such authori- on his I con- heard have ty by majority. in such a vital be assumed cur in the result reached waiving my decision, however, as that noted, crucial statutory It should be right to be ordering judgment by remand in this oral testimo- appear at a case, would we reached what ny a material is adduced issue “on limits of habeas cor- outermost knowledge.” his fact within pus. my con- I am comforted somewhat circumstances, hold we Under by posed currence, appellant’s because appeal should whether we is not have been considered should not grant set writ court, under Townsend the district Davis free but whether supra, fact-find- “the state because Jurisdiction, Hall L.Rev. 2 Seton Gibbons, Func- Quest Waiver: Corpus on Habeas Limitations tional incompetently justify advised his ant was attorney. were records respondents suc- petition For the denial of District Court’s hearing. cessfully holding to claim based Jack- 368, 84 son v. Denno [378 trial, days after three plea In must dem- each 12 L.Ed.2d 908] charge changed his Davis part gross error on the onstrate guilty to vult. from murder counsel when recommended he present proceed- purpose of the For the going plead instead plea of ing, equivalent ato non vult is challenging to trial the New York guilty. petitions In his determining procedures admis- courts, federal and the the state both sibility of confessions. sought his as invol- attack alleged untary. that the He denigration “It is no coerced a confession motivated hold that when the defendant police, and second him the remedies and waives his direct result of undue “the guilt, admits under the he does so influence existing; further, law then he as- counsel.” ordinary error in ei- sumes the risk of averments, dealing two In with Davis’ attorney’s assessment ther guided by we must be law and facts. *5 in the McMann Court’s decisions might differently pleaded Richardson, trilogy.1 397 McMann v. law, later then been the decided cases 1441, 759, 763 90 S.Ct. 25 L.Ed.2d U.S. plea and his convic- he is bound advice held when allege prove he can se- tion unless competent pleads a defendant part of rious derelictions on the coun- guilty prosecution, a state waives in he sel sufficient to show might any objections have to an al- he not, knowing all, in- a after legedly 90 coerced confession. Id. telligent act.” S.Ct. ex rel. 1441. United States Thus, a state in absence of (3rd Russell, Johnson Cir., 444 F.2d v. 1177 charge of “seri- sufficient to answer the 1971). July 7, Therefore, Davis’ counsel,” part of ous derelictions alone, clearly claim, standing gives necessary to it is for a district court rise to no federal relief. hearing hold an point. on this Supreme Court, Mc- in Mann, was also confronted with claims allege that his court- Petitioner does petitioners concerning the habeas appointed 1947 trial col- counsel at the competence counsel, of their based judge to influence luded with the trial grounds arguably than the other bad ad- If, plead guilty. based on the Davis to vice of counsel that the confessions record, reply to this aver- would be admissible trial. With re- negative, judg- ment could be gard claims, to Court ment of should be af- District Court (397 772, 774, said U.S. Unfortunately, state firmed. court 1449, 1450, 763): 25 L.Ed.2d because, when, inadequate, record is “. .a in a hearing, the second Davis’ subject state court is not to collateral court-appointed counsel elicited testimo-

attack in a federal on the ny Davis’ Davis it was motivated required by present, New as coerced confession unless the defend- law.2 Brady States, 1. v. United 90 Mr. Juska’s NJR 3:22-10. (1969); S.Ct. testimony probably 25 L.Ed.2d 747 McM outside Davis’ Richardson, ann v. knowledge, U.S. 90 be there a suffi (1970); point 25 L.Ed.2d 763 Park to cient on this afford Carolina, er North Davis an to be 25 L.Ed.2d such is adduced. incongruous only by giving petitioner It indeed that It seems the be- twenty-five years entry nefit in in- after the of his doubt each of these years after stances that is able of non vult and seven to avail himself Thus, of a federal the second habeas Davis should forum. because of exception advantage now to take of the ad- to the rule McMann be able testimony Richardson, supra, has avoided mission into evidence lawyer petition, denial of which his own insisted and be- presenting. technicality cause of a the sec- in New hearing law he ond entitled to a contains the follow- federal during significant given exchange: court opportunity he will be prove appears what Very Apple- “The Court: gate. Mr. well. unlikely highly circumstance. However, rather than the relief which May I call Mr. Evans: Juska “Mr. majority opinion, is inherent I original as counsel] [Davis’ (1) limiting would enter an order your please, question, if Honor as one taking on remand to the plea at time of the trial. present, with Davis weight This as to the that was then of Davis the confession the defendant rebuttal; (2) providing that if Mr. Jus- himself, time and Mr. Juska at the ka’s and Davis’ rebuttal would confession. finding support that Mr. Juska so, Mr. “The Court: believe don’t incompetent, such failure to end the just hesitating a mo- Evans. I am new and result a dismissal of me, I recall the It as ment. seems petition; (3) making it clear rule, is to if factual matter be proof the burden of is on Davis. argued, presence-— it must be in the Grays ex United States v. Rundle. has a (3rd 1970). F.2d Cir. any- anticipated I hadn’t *6 contemplat- thing of nature to

ed. your please, if If Honor Evans:

“Mr. memory, your all I refresh with your respect, due I conferred with ago, Honor Chambers several weeks you which time instructed me Larry CLARK, Plaintiff-Appellee, E. spe- Juska Mr. question. cific Berkeley al., et L. BUNKER Defendants- right, “The Court: All call him.” Appellants. gives The record no indication of the No. 25224. reason for Davis’ non-attendance at the hearing. therefore, possible, Appeals, It States Court of Ninth Circuit. Davis, for us to determine any way, waived his Jan. circumstances,

Under these and be- cause to examine court-appointed law- yer, rebut Mr. Juska’s agree reluctantly majority with the Townsend (1963) requires L.Ed.2d 770 Davis now be do so.