Staley, Seitz and Van Dusen, Circuit Judges. Hastie, Chief Judge, and Staley, Freedman, Seitz, Van Dusen, Aldisert, Adams and Gibbons, Circuit Judges. Freedman, Circuit Judge (concurring).
VAN DUSEN, Circuit Judge.
This appeal challenges a District Court order and opinion,*fn1 denying relator's petition for a writ of habeas corpus. See United States ex rel. Grays v. Rundle, 293 F. Supp. 643 (E.D.Pa.1968). Relator, with counsel present, had entered a plea of guilty to murder generally in the Philadelphia state criminal court on January 26, 1954.*fn2 After entry of the plea, a hearing was held to determine the applicable degree of murder. The court found relator guilty of first degree murder and sentenced him to life imprisonment. On appeal, relator's counsel contended that the facts did not justify a finding of murder in the first degree, but this contention was rejected. See Commonwealth v. Grays, 380 Pa. 77, 110 A.2d 422 (1955).*fn3 After serving more than 12 years in prison, relator, for the first time, sought collateral relief in the state court by filing a petition under the Pennsylvania Post Conviction Hearing Act (19 P.S. § 1180-1 ff.),*fn4 claiming that his guilty plea had been unlawfully induced and that a coerced confession had been illegally received in evidence at the above-mentioned hearing.*fn5 This petition alleged that relator's counsel "advised petitioner to change his plea to guilty declaring the degree could rise no higher than second degree in any case" and such "a plea * * * would substantially minimize the degree." Also relator testified that such counsel told him, prior to the entry of the plea, that one of the hearing judges said that relator would have a new trial if a sentence of more than 6 to 12 years was imposed.*fn6 After a hearing in July 1967, the petition was denied by the trial court and such denial was affirmed. See Commonwealth v. Grays, 428 Pa. 109, 237 A.2d 198 (1968).
Assuming that the state trial court did not conduct, at the time of accepting the guilty plea, an inquiry sufficient to establish that the plea was knowingly and understandingly made, the totality of the circumstances in the record before the District Court, which included the transcript of the 1954 hearing as well as the 1967 hearing on the post-conviction petition, justified the District Court's findings and conclusions that the plea was "knowingly and voluntarily entered" and was not "improperly induced" (293 F. Supp. at 647).*fn7 The Supreme Court of the United States has recently recognized that a plea entered by a counseled defendant, even though there was a prior confession, now claimed to be coerced, which might have been offered against him, has a presumption of validity which sustains it against collateral attack. See McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970), where the Court said:
"The issue on which we differ with the Court of Appeals arises in those situations involving the counselled defendant who allegedly would put the State to its proof if there was a substantial enough chance of acquittal, who would do so except for a prior confession which 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 minimize the penalty which might be imposed. After conviction on such a plea, is a defendant entitled to a hearing, and to relief if his factual claims are accepted, when his petition for habeas corpus alleges that his confession was in fact coerced and that it motivated his plea? We think not if he alleges and proves no more than this.
"* * * a plea of guilty in a state court is not subject to collateral attack in a federal court on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney. For the respondents in these cases successfully to claim relief based on Jackson v. Denno, each must demonstrate gross error on the part of counsel when he recommended that the defendant plead guilty instead of going to trial and challenging the New York procedures for determining the admissibility of confessions.
"It is no denigration of the right to trial to hold that when the defendant waives his state court remedies and admits his guilt, he does so under the law then existing; further, he assumes the risk of ordinary error in either his or his attorney's assessment of the law and facts. Although he might have pleaded differently had later decided cases then been the law, he is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act."*fn8
We have recently held that Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), relied on by relator, is not to be applied retroactively. United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3rd Cir. 1969); see Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923 (1969).
Under the circumstances presented by this record,*fn9 the District Court did not err in placing the burden of persuasion upon the relator to show that his plea was not entered as an intelligent act "done with sufficient awareness of the relevant circumstances and likely consequences."*fn10 See Walker v. Johnston, 312 U.S. 275, 287, 61 S. Ct. 574, 579, 85 L. Ed. 830 (1941), where the Court, in remanding for a hearing in the District Court to determine the voluntariness of the guilty plea, used this language:
"Not by the pleadings and the affidavits, but by the whole of the testimony, must it be determined whether the petitioner has carried his burden of proof and shown his right to a discharge." [Emphasis supplied.] (quoted with approval in Machibroda v. United States, 368 U.S. 487, 495, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962))
See McMann v. Richardson, supra (last sentence of quotation on p. 5 above). To the extent that our opinions in United States ex rel. McCloud v. Rundle, 402 F.2d 853, 858 (3rd Cir. 1968); United States ex rel. Crosby v. Brierley, 404 F.2d 790, 795-796 (3rd Cir. 1968); and United States ex rel. Fink v. Rundle, 414 F.2d 542, 546 (3rd Cir. 1969), are inconsistent with this decision, involving a 1954 plea, they are not to be followed.
The court expresses its appreciation for the able presentation of, and the helpful briefs filed by, ...