431 U.S.

63
97 S.Ct. 1621
52 L.Ed.2d 136

Stanley BLACKLEDGE, Warden, et al., Petitioners,

v.
Gary Darrell ALLISON.
No. 75-1693.
Argued Feb. 22, 1977.
Decided May 2, 1977.

Syllabus
At the arraignment of respondent, who had been indicted in North
Carolina for various state criminal offenses, he entered a guilty plea to a
single count of attempted safe robbery. In response to two of various form
questions that under then-applicable procedures were put by the trial judge
to those entering guilty pleas, respondent acknowledged that he
understood that he could be imprisoned for a minimum of 10 years to a
maximum of life and that no one had made promises or threats to
influence him to plead guilty. Without further questioning, the judge
accepted the plea on an "Adjudication" form, which, inter alia, recited that
respondent had pleaded guilty to attempted safe robbery "freely,
understandingly and voluntarily," with full awareness of the
consequences, and "without undue . . . compulsion . . . duress, (or)
promise of leniency." At a sentencing hearing three days later respondent
was sentenced to 17-21 years. After unsuccessfully exhausting a state
collateral remedy, respondent sought a writ of habeas corpus in a Federal
District Court, claiming that his guilty plea had been induced by the
promise of his attorney, who presumably had consulted with the judge and
Solicitor, that he would get only a 10-year sentence. He also stated that he
was aware that he had been questioned by the judge before sentencing but
thought that he was going to get only 10 years and had been instructed to
answer the questions so that the court would accept the guilty plea. The
District Court granted a motion to dismiss the petition, on the ground that
the form conclusively showed that respondent had chosen to plead guilty
knowingly, voluntarily, and with full awareness of the consequences. The
Court of Appeals reversed, holding that respondent's allegation of a broken

promise, as amplified by the explanation that his lawyer instructed him to

deny the existence of any promises, was not foreclosed by his responses to
the form questions and that he was entitled to an evidentiary hearing, at
least in the absence of counter-affidavits conclusively proving the falsity
of respondent's allegations. Held: In light of the nature of the record of the
proceeding at which the guilty plea was accepted, and of the ambiguous
status of the process of plea bargaining at the time the guilty plea was
made, respondent's petition for a writ of habeas corpus should not have
been summarily dismissed. Pp. 71-83.
(a) Although the plea or sentencing proceeding record constitutes a
formidable barrier to a collateral attack on a guilty plea, that barrier is not
insurmountable, and in administering the writ of habeas corpus federal
courts cannot fairly adopt a per se rule excluding all possibility that a
defendant's representations at the time of his guilty plea were so much the
product of such factors as misunderstanding, duress, or misrepresentation
as to make that plea a constitutionally inadequate basis for imprisonment.
Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473;
Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169.
Pp. 71-75.
(b) Respondent's allegations were not so vague or conclusory as to warrant
dismissal for that reason alone. He elaborated on his claim with specific
factual allegations, indicating exactly what the terms of the promise were;
when, where, and by whom it had been made; and the identity of a witness
to its communication. Pp. 75-76.
(c) The North Carolina plea-bargaining procedure that was in effect at the
time of respondent's arraignment reflected the atmosphere of secrecy that
then characterized plea bargaining, whose legitimacy was not finally
established until Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30
L.Ed.2d 427 which was decided not long before respondent's arraignment.
There was no transcript of the proceeding but only a standard printed
form, and there is no way of knowing if the trial judge deviated from the
form or whether any statements were made regarding promised sentencing
concessions; nor is there any record of the sentencing hearing. The form
questions did nothing to dispel a defendant's belief that any plea bargain
had to be concealed. Particularly, if, as respondent alleged, he was advised
by counsel to conceal any plea bargain, his denial that promises had been
made have been mere courtroom ritual. Pp. 76-78.
(d) Though through such procedures as summary judgment, discovery, or
expansion of the record, it may develop that a full evidentiary hearing is

not required, respondent is "entitled to careful consideration and plenary

processing of (his claim,) including full opportunity for presentation of the
relevant facts." Harris v. Nelson, 394 U.S. 286, 298, 89 S.Ct. 1082, 1090,
22 L.Ed.2d 281. Pp. 80-82.
4 Cir., 533 F.2d 894, affirmed.
Richard N. League, Raleigh, N. C., for petitioners.
C. Frank Goldsmith, Jr., Marion, N. C., for respondent.
Mr. Justice STEWART delivered the opinion of the Court.

The respondent, Gary Darrell Allison, an inmate of a North Carolina

penitentiary, petitioned a Federal District Court for a writ of habeas corpus. The
court dismissed his petition without a hearing, and the Court of Appeals
reversed, ruling that in the circumstances of this case summary dismissal was
improper. We granted certiorari to review the judgment of the Court of
Appeals.

* Allison was indicted by a North Carolina grand jury for breaking and
entering, attempted safe robbery, and possession of burglary tools. At his
arraignment, where he was represented by court-appointed counsel, he initially
pleaded not guilty. But after learning that his codefendant planned to plead
guilty, he entered a guilty plea to a single count of attempted safe robbery, for
which the minimum prison sentence was 10 years and the maximum was life.
N.C.Gen.Stat. 14-89.1 (1969).

In accord with the procedure for taking guilty pleas then in effect in North
Carolina, the judge in open court read from a printed form 13 questions,
generally concerning the defendant's understanding of the charge, its
consequences, and the voluntariness of his plea. Allison answered "yes" or "no"
to each question, and the court clerk transcribed those responses on a copy of
the form, which Allison signed. So far as the record shows, there was no
questioning beyond this routine; no inquiry was made of either defense counsel
or prosecutor. Two questions from the form are of particular relevance to the
issues before us: Question No. 8 "Do you understand that upon your plea of
guilty you could be imprisoned for as much as minimum (sic ) of 10 years to
life?" to which Allison answered "Yes"; and Question No. 11 "Has the
Solicitor, or your lawyer, or any policeman, law officer or anyone else made
any promises or threat to you to influence you to plead guilty in this case?" to
which Allison answered "No."

The trial judge then accepted the plea by signing his name at the bottom of the
form under a text entitled "Adjudication," which recited the three charges for
which Allison had been indicted, that he had been fully advised of his rights,
was in fact guilty, and pleaded guilty to attempted safe robbery "freely,
understandingly and voluntarily," with full awareness of the consequences, and
"without undue . . . compulsion . . . duress, (or) promise of leniency."1 Three
days later, at a sentencing hearing, of which there is no record whatsoever,
Allison was sentenced to 17-21 years in prison.

After unsuccessfully exhausting a state collateral remedy, Allison filed a pro se

petition in a Federal District Court seeking a writ of habeas corpus. The petition
alleged:

"(H)is guilty plea was induced by an unkept promise, and therefore was not the
free and willing choice of the petitioner, and should be set aside by this Court.
An unkept bargain which has induced a guilty plea is grounds for relief.
Santobello v. New York, 404 U.S. 257, 267 (, 92 S.Ct. 495, 501, 30 L.Ed.2d
427) (1971)." Pet. for Cert. 14.

The petition went on to explain and support this allegation as follows:

"The petitioner was led to believe and did believe, by Mr. Pickard (Allison's
attorney), that he Mr. N. Glenn Pickard had talked the case over with the
Solicitor and the Judge, and that if the petitioner would plea(d) guilty, that he
would only get a 10 year sentence of penal servitude. This conversation, where
the petitioner was assured that if he plea(ded) guilty, he would only get ten
years was witnessed by another party other than the petitioner and counsel.

"The petitioner believing that he was only going to get a ten year active
sentence, allowed himself to be pled guilty to the charge of attempted safe
robbery, and was shocked by the Court with a 17-21 year sentence.

10

"The petitioner was promised by his Attorney, who had consulted presumably
with the Judge and Solicitor, that he was only going to get a ten year sentence,
and therefore because of this unkept bargain, he is entitled to relief in this
Court.

11

"The petitioner is aware of the fact that he was questioned by the trial Judge
prior to sentencing, but as he thought he was only going to get ten years, and
had been instructed to answer the questions, so that the Court would accept the
guilty plea, this fact does not preclude him from raising this matter especially

since he was not given the promised sentence by the Court.

12

". . . The fact that the Judge, said that he could get more, did not affect, the
belief of the petitioner, that he was only going to get a ten year sentence."

13

The petitioner here, Warden Blackledge, filed a motion to dismiss and attached
to it the "transcript" of the plea hearing, consisting of nothing more than the
printed form filled in by the clerk and signed by Allison and the state-court
judge. The motion contended that the form conclusively showed that Allison
had chosen to plead guilty knowingly, voluntarily, and with full awareness of
the consequences. The Federal District Court agreed that the printed form
"conclusively shows that (Allison) was carefully examined by the Court before
the plea was accepted. Therefore, it must stand." Pet. for Cert. 18. Construing
Allison's petition as alleging merely that his lawyer's prediction of the severity
of the sentence turned out to be inaccurate, the District Court found no basis for
relief and, accordingly, dismissed the petition.

14

One week later Allison filed a petition for rehearing. He contended that his
statements during the guilty-plea proceeding in the state court were
"evidentiary, but NOT conclusory" (App. 17); that if true the allegations in his
petition entitled him to relief; and that he deserved a chance to establish their
truth. Apparently impressed by these arguments and recognizing that Allison
was alleging more than a mere "prediction" by his lawyer, the District Court
referred the rehearing petition to a United States Magistrate, who directed
Allison to submit evidence in support of his allegations. After an inconclusive
exchange of correspondence, the Magistrate concluded that despite "ample
opportunity" Allison had failed to comply with the directive, and recommended
that the petition for rehearing be denied. The District Court accepted the
Magistrate's recommendation and denied the petition. A motion for
reconsideration was also denied.

15

The Court of Appeals for the Fourth Circuit reversed. It held that Allison's
allegation of a broken promise, as amplified by the explanation that his lawyer
instructed him to deny the existence of any promises, was not foreclosed by his
responses to the form questions at the state guilty-plea proceeding. The
appellate court reasoned that when a pro se, indigent prisoner makes allegations
that, if proved, would entitle him to habeas corpus relief, he should not be
required to prove his allegations in advance of an evidentiary hearing, at least in
the absence of counter affidavits conclusively proving their falsity. The case
was therefore remanded for an evidentiary hearing. 533 F.2d 894.

16

The petitioner warden sought review in this Court, 28 U.S.C. 1254(1), and we

16

The petitioner warden sought review in this Court, 28 U.S.C. 1254(1), and we
granted certiorari, 429 U.S. 814, 97 S.Ct. 55, 50 L.Ed.2d 74, to consider the
significant federal question presented.

II
17

Whatever might be the situation in an ideal world, the fact is that the guilty plea
and the often concomitant plea bargain are important components of this
country's criminal justice system. Properly administered, they can benefit all
concerned. The defendant avoids extended pretrial incarceration and the
anxieties and uncertainties of a trial; he gains a speedy disposition of his case,
the chance to acknowledge his guilt, and a prompt start in realizing whatever
potential there may be for rehabilitation. Judges and prosecutors conserve vital
and scarce resources. The public is protected from the risks posed by those
charged with criminal offenses who are at large on bail while awaiting
completion of criminal proceedings.2

18

These advantages can be secured, however, only if dispositions by guilty plea

are accorded a great measure of finality. To allow indiscriminate hearings in
federal postconviction proceedings, whether for federal prisoners under 28
U.S.C. 2255 or state prisoners under 28 U.S.C. 2241-2254, would
eliminate the chief virtues of the plea system speed, economy, and finality. And
there is reason for concern about that prospect. More often than not a prisoner
has everything to gain and nothing to lose from filing a collateral attack upon
his guilty plea. If he succeeds in vacating the judgment of conviction, retrial
may be difficult. If he convinces a court that his plea was induced by an
advantageous plea agreement that was violated, he may obtain the benefit of its
terms. A collateral attack may also be inspired by "a mere desire to be freed
temporarily from the confines of the prison." Price v. Johnston, 334 U.S. 266,
284-285, 68 S.Ct. 1049, 1059, 92 L.Ed. 1356; accord, Machibroda v. United
States, 368 U.S. 487, 497, 82 S.Ct. 510, 515, 7 L.Ed.2d 473 (Clark, J.,
dissenting).

19

Yet arrayed against the interest in finality is the very purpose of the writ of
habeas corpus to safeguard a person's freedom from detention in violation of
constitutional guarantees. Harris v. Nelson, 394 U.S. 286, 290-291, 89 S.Ct.
1082, 1086, 22 L.Ed.2d 281. "The writ of habeas corpus has played a great role
in the history of human freedom. It has been the judicial method of lifting
undue restraints upon personal liberty." Price v. Johnston, supra, 334 U.S. 266,
at 269, 68 S.Ct. 1049, at 1052, 92 L.Ed. 1356. And a prisoner in custody after
pleading guilty, no less than one tried and convicted by a jury, is entitled to
avail himself of the writ in challenging the constitutionality of his custody.

20

In Machibroda v. United States, supra, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d
473, the defendant had pleaded guilty in federal court to bank robbery charges
and been sentenced to 40 years in prison. He later filed a 2255 motion
alleging that his plea had been induced by an Assistant United States Attorney's
promises that his sentence would not exceed 20 years, that the prosecutor had
admonished him not to tell his lawyer about the agreement, and that the trial
judge had wholly failed to inquire whether the guilty plea was made voluntarily
before accepting it. This Court noted that the allegations, if proved, would
entitle the defendant to relief, and that they raised an issue of fact that could not
be resolved simply on the basis of an affidavit from the prosecutor denying the
allegations. Because those allegations "related primarily to purported
occurrences outside the courtroom and upon which the record could, therefore,
cast no real light," 368 U.S., at 494-495, 82 S.Ct., at 514, and were not so
"vague (or) conclusory," id., at 495, 82 S.Ct., at 514, as to permit summary
disposition, the Court ruled that the defendant was entitled to the opportunity to
substantiate them at an evidentiary hearing.

21

The later case of Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36
L.Ed.2d 169 followed the same approach. The defendant there, having waived
counsel, had also pleaded guilty to federal bank robbery charges. Before
accepting the plea, the District Judge addressed the defendant personally, and
the defendant stated in substance "that his plea was given voluntarily and
knowingly, that he understood the nature of the charge and the consequences of
the plea, and that he was in fact guilty." Id., at 213-214, 93 S.Ct., at 1462. The
defendant later filed a 2255 motion to vacate his sentence on the ground that
his plea had been coerced "by a combination of fear, coercive police tactics,
and illness, including mental illness." 411 U.S., at 214, 93 S.Ct., at 1462. The
motion included supporting factual allegations, as well as hospital records
documenting some of the contentions.

22

Although noting that in collaterally attacking a plea of guilty a prisoner "may

not ordinarily repudiate" statements made to the sentencing judge when the
plea was entered, the Court observed that no procedural device for the taking of
guilty pleas is so perfect in design and exercise as to warrant a per se rule
rendering it "uniformly invulnerable to subsequent challenge." Id., at 215, 93
S.Ct., at 1462. Because the record of the plea hearing did not, in view of the
allegations made, " 'conclusively show that the prisoner (was) entitled to no
relief,' " 28 U.S.C. 2255, the Court ruled that the prisoner should be given an
evidentiary hearing.3

23

(1, 2) These cases do not in the least reduce the force of the original plea

hearing. For the representations of the defendant, his lawyer, and the
prosecutor at such a hearing, as well as any findings made by the judge
accepting the plea, constitute a formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry a strong presumption of
verity. The subsequent presentation of conclusory allegations unsupported by
specifics is subject to summary dismissal, as are contentions that in the face of
the record are wholly incredible. Machibroda, supra, 368 U.S. at 495-496, 82
S.Ct., at 514 ( 2255); Price v. Johnston, supra, at 334 U.S. 266, 286-287, 68
S.Ct. 1049, 1060-1061, 92 L.Ed. 1356 ( 2243). 4
24

(3) What Machibroda and Fontaine indisputably teach, however, is that the
barrier of the plea or sentencing proceeding record, although imposing, is not
invariably insurmountable.5 In administering the writ of habeas corpus and its
2255 counterpart, the federal courts cannot fairly adopt a per se rule excluding
all possibility that a defendant's representations at the time his guilty plea was
accepted were so much the product of such factors as misunderstanding, duress,
or misrepresentation by others as to make the guilty plea a constitutionally
inadequate basis for imprisonment.6

III
25

(4-6) The allegations in this case were not in themselves so "vague (or)
conclusory," Machibroda, supra, 368 U.S. at 495, 82 S.Ct., at 514, as to warrant
dismissal for that reason alone.7 Allison alleged as a ground for relief that his
plea was induced by an unkept promise.8 But he did not stop there. He
proceeded to elaborate upon this claim with specific factual allegations. The
petition indicated exactly what the terms of the promise were; when, where,
and by whom the promise had been made; and the identity of one witness to its
communication. The critical question is whether these allegations, when viewed
against the record of the plea hearing, were so "palpably incredible," ibid., so
"patently frivolous or false", Herman v. Claudy, 350 U.S. 116, 119, 76 S.Ct.
223, 225, 100 L.Ed. 126, as to warrant summary dismissal. In the light of the
nature of the record of the proceeding at which the guilty plea was accepted,
and of the ambiguous status of the process of plea bargaining at the time the
guilty plea was made, we conclude that Allison's petition should not have been
summarily dismissed.

26

Only recently has plea bargaining become a visible practice accepted as a

legitimate component in the administration of criminal justice. For decades it
was a sub rosa process shrouded in secrecy and deliberately concealed by
participating defendants, defense lawyers, prosecutors, and even judges.9
Indeed, it was not until our decision in Santobello v. New York, 404 U.S. 257,

92 S.Ct. 495, 30 L.Ed.2d 427, that lingering doubts about the legitimacy of the
practice were finally dispelled.10
27

Allison was arraigned a mere 37 days after the Santobello decision was
announced, under a North Carolina procedure that had not been modified in
light of Santobello or earlier decisions of this Court 11 recognizing the process of
plea bargaining.12 That procedure itself reflected the atmosphere of secrecy
which then characterized plea bargaining generally. No transcript of the
proceeding was made. The only record was a standard printed form. There is no
way of knowing whether the trial judge in any way deviated from or
supplemented the text of the form. The record is silent as to what statements
Allison, his lawyer, or the prosecutor might have made regarding promised
sentencing concessions. And there is no record at all of the sentencing hearing
three days later, at which one of the participants might well have made a
statement shedding light upon the veracity of the allegations Allison later
advanced.

28

The litany of form questions followed by the trial judge at arraignment nowhere
indicated to Allison (or indeed to the lawyers involved) that plea bargaining
was a legitimate practice that could be freely disclosed in open court. Neither
lawyer was asked to disclose any agreement that had been reached, or
sentencing recommendation that had been promised. The process thus did
nothing to dispel a defendant's relief that any bargain struck must remain
concealed a belief here allegedly reinforced by the admonition of Allison's
lawyer himself that disclosure could jeopardize the agreement. Rather than
challenging respondent's counsel's contention at oral argument in this Court that
"at that time in North Carolina plea bargains were never disclosed in response
to such a question on such a form," Tr. of Oral Arg. 25, counsel for the
petitioners conceded at oral argument that "(t)hat form was a minimum
inquiry." Id., at 49.

29

(7) Although "(l)ogically the general inquiry should elicit information about
plea bargaining, . . . it seldom has in the past." Advisory Committee Notes to
1974 Amendment of Fed.Rule Crim.Proc. 11, 18 U.S.C.App., p. 1304 (1970
ed., Supp. V).13 Particularly if, as Allison alleged, he was advised by counsel to
conceal any plea bargain, his denial that any promises had been made might
have been a courtroom ritual more sham than real.14 We thus cannot conclude
that the allegations in Allison's habeas corpus petition, when measured against
the "record" of the arraignment, were so "patently false or frivolous"15 as to
warrant summary dismissal.16

30

North Carolina has recently undertaken major revisions of its plea-bargaining

procedures in part to prevent the very kind of problem now before us.17 Plea
bargaining is expressly legitimate. N.C.Gen.Stat. 15A-1021, and Official
Commentary (1975). The judge is directed to advise the defendant that courts
have approved plea bargaining and he may thus admit to any promises without
fear of jeopardizing an advantgeous agreement or prejudicing himself in the
judge's eyes. See Brief for Respondent, App. D. Specific inquiry about whether
a plea bargain has been struck is then made not only of the defendant, but also
of his counsel and the prosecutor. N.C.Gen.Stat. 15A-1023(a), (c) (1975).
Finally, the entire proceeding is to be transcribed verbatim. 15A-1026, as
amended (Int.Supp.1976).18
31

(8) Had these commendable procedures been followed in the present case,
Allison's petition would have been cast in a very different light. The careful
explication of the legitimacy of plea bargaining, the questioning of both
lawyers, and the verbatim record of their answers at the guilty-plea proceedings
would almost surely have shown whether any bargain did exist and, if so,
insured that it was not ignored.19 But the salutary reforms recently implemented
by North Carolina highlight even more sharply the deficiencies in the record
before the District Court in the present case.20

32

(9) This is not to say that every set of allegations not on its face without merit
entitles a habeas corpus petitioner to an evidentiary hearing. As in civil cases
generally, there exists a procedure whose purpose is to test whether facially
adequate allegations have sufficient basis in fact to warrant plenary presentation
of evidence. That procedure is, of course, the motion for summary judgment.
Upon remand the warden will be free to make such a notion, supporting it with
whatever proof he wishes to attach.21 If he chooses to do so, Allison will then
be required either to produce some contrary proof indicating that there is a
genuine issue of fact to be resolved by the District Court or to explain his
inability to provide such proof. Fed.Rules Civ.Proc. 56(e), (f).

33

(10) Moreover, as is now expressly provided in the Rules Governing Habeas

Corpus Cases, the district judge (or a magistrate to whom the case may be
referred)22 may employ a variety of measures in an effort to avoid the need for
an evidentiary hearing. Under Rule 6,23 a party may request and the judge may
direct that discovery take place, and "there may be instances in which discovery
would be appropriate (before an evidentiary hearing, and would show such a
hearing) to be unnecessary. . . ." Advisory Committee Note to Rule 6, Rules
Governing Habeas Corpus Cases, 28 U.S.C., p. 268 (1976 ed.). Under Rule 7,24
the judge can direct expansion of the record to include any appropriate
materials that "enable the judge to dispose of some habeas petitions not
dismissed on the pleadings, without the time and expense required for an

evidentiary hearing."25
34

(11) In short, it may turn out upon remand that a full evidentiary hearing is not
required. But Allison is "entitled to careful consideration and plenary
processing of (his claim,) including full opportunity for presentation of the
relevant facts." Harris v. Nelson, 394 U.S., at 298, 89 S.Ct., at 1090. See
Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv.L.Rev.
321, 337-338 (1973).26 Upon that understanding, the judgment of the Court of
Appeals is affirmed.

35

It is so ordered.

36

THE CHIEF JUSTICE concurs in the judgment.

37

Mr. Justice REHNQUIST took no part in the consideration or decision of this

case.

38

Mr. Justice POWELL, concurring.

39

I join the opinion of the Court, and write briefly only to emphasize the
importance of finality to a system of justice.* Our traditional concern for
"persons whom society has grievously wronged and for whom belated
liberation is little enough compensation," Fay v. Noia, 372 U.S. 391, 441, 83
S.Ct. 822, 850, 9 L.Ed.2d 837 (1963), has resulted in a uniquely elaborate
system of appeals and collateral review, even in cases in which the issue
presented has little or nothing to do with innocence of the accused. The
substantial societal interest in both innocence and finality of judgments is
subordinated in many instances to formalisms.

40

The case before us today is not necessarily an example of abuse of the system.
It is an example, however, of how finality can be frustrated by failure to adhere
to proper procedures at the trial court level. I do not prejudge the ultimate result
in this case by saying that respondent's guilty plea may well have been made
knowingly and voluntarily. The case is here, five years after respondent's
conviction, and following review by the North Carolina courts, the United
States District Court, and the Court of Appeals for the Fourth Circuit, primarily
because the record before us leaves room for some doubt as to the reliability of
the procedure followed with respect to the guilty plea. All that we have in the
record, as a basis for testing the possible merit of respondent's petition, are
answers to a printed form certified by the trial judge. We do not know whether
anything was said by the judge, the prosecutor, or counsel for respondent, other

than the questions read from the form and the monosyllabic answers by
respondent. There was no transcript of the proceedings.
41

As the Court's opinion indicates, there is every reason to believe that if a

procedure similar to that prescribed by the new North Carolina statute is
followed, a contention such as that made by respondent will justify an
evidentiary hearing "only in the most extraordinary circumstances." Ante, at 80
n. 19. If all participants in the process at the plea stage are mindful of the
importance of adhering carefully to prescribed procedures and of preserving a
full record thereof, the causes of justice and finality both will be served.

The only record of the proceeding consists, therefore, of the executed form
which reads, in its entirety (Pet. for Cert. 10-13), as follows:
"File 71 CrS 15073
"Film ..........
"In the General Court of Justice
"Superior Court Division
"State of North Carolina
"County of Alamance
"State of North Carolina
"vs.
"Gary Darrell Allison
"TRANSCRIPT OF PLEA
"The Defendant, being first duly sworn, makes the following answers to the
questions asked by the Presiding Judge:
"1. Are you able to hear and understand my statements and questions?
Answer: Yes
"2. Are you now under the influence of any alcohol, drugs, narcotics,
medicines, or other pills?

Answer: No
"3. Do you understand that you are charged with the felony of Attempted Safe
Cracking?
Answer: Yes
"4. Has the charge been explained to you, and are you ready for trial?
Answer(:) Yes
"5. Do you understand that you have the right to plead not guilty and to be tried
by a Jury?
Answer: Yes
"6. How do you plead to the charge of Attempted Safe Cracking Guilty, not
Guilty, or nolo contendere?
Answer: Guilty
"7. (a) Are you in fact guilty? (Omit if plea is nolo contendere)
Answer: Yes
(b) (If applicable) Have you had explained to you and do you understand the
meaning of a plea of nolo contendere?
Answer: . . .
"8. Do you understand that upon your plea of guilty you could be imprisoned
for as much as minimum of 10 years to life?
Answer: Yes
"9. Have you had time to subpoena witnesses wanted by you?
Answer: Yes
"10. Have you had time to talk and confer with and have you conferred with
your lawyer about this case, and are you satisfied with his services?
Answer: Yes
"11. Has the Solicitor, or your lawyer, or any policeman, law officer or anyone
else made any promises or threat to you to influence you to plead guilty in this

case?
Answer: No
"12. Do you now freely, understandingly and voluntarily authorize and instruct
your lawyer to enter on your behalf a plea of guilty?
Answer: Yes
"13. Do you have any questions or any statement to make about what I have
just said to you?
Answer: No
"I have read or heard read all of the above questions and answers and
understand them, and the answers shown are the ones I gave in open Court, and
they are true and correct.
"Gary Darrell Allison
"Defendant
"Sworn to and subscribed before me this 24th day of January, 1972.
"AOC-L Form 158
"Rev. 10/69
"Catherine Sykes, Ass't.
"Clerk Superior Court
"ADJUDICATION
"The undersigned Presiding Judge hereby finds and adjudges:
"I. That the defendant, Gary Darrell Allison, was sworn in open Court and the
questions were asked him as set forth in the Transcript of Plea by the
undersigned Judge, and the answers given thereto by said defendant are as set
forth therein.
"II. That this defendant, was represented by attorney, M. Glenn
Pickard, who was (court appointed); and the defendant through his attorney, in
open Court, plead (sic ) (guilty) to Attempted Safe Cracking as charged in the

(warrant) (bill of indictment), of Breaking & Entering, Safe Burglary &

Possession of Burglary Tools and in open Court, under oath further informs the
Court that:
"1. He is and has been fully advised of his rights and the charges against him;
"2. He is and has been fully advised of the maximum punishment for said
offense(s) charged, and for the offense(s) to which he pleads guilty;
"3. He is guilty of the offense(s) to which he pleads guilty;
"4. He authorizes his attorney to enter a plea of guilty to said charge(s);
"5. He has had ample time to confer with his attorney, and to subpoena
witnesses desired by him;
"6. He is ready for trial;
"7. He is satisfied with the counsel and services of his attorney;
"And after further examination by the Court, the Court ascertains, determines
and adjudges, that the plea of guilty, by the defendant is freely, understandingly
and voluntarily made, without undue influence, compulsion or duress, and
without promise of leniency. It is, therefore, ORDERED that his plea of guilty
be entered in the record, and that the Transcript of Plea and Adjudication be
filed and recorded.
"This 24th day of January, 1972.
"Marvin Blount, Jr.
"Judge Presiding"
2

See generally Santobello v. New York, 404 U.S. 257, 260-261, 92 S.Ct. 495,
497-498, 30 L.Ed.2d 427; Brady v. United States, 397 U.S. 742, 751-752, 90
S.Ct. 1463, 1470-1471, 25 L.Ed.2d 747; ABA Project on Standards for
Criminal Justice, Pleas of Guilty 1-3 (Approved Draft 1968) (hereinafter ABA
Standards); ALI Model Code of Pre-Arraignment Procedure 350.3,
Commentary (1975) (hereinafter ALI Code).

Fontaine and Machibroda were by no means the first cases in which this Court
held that postconviction collateral relief might be available to a person
convicted after having pleaded guilty. See, e. g., Herman v. Claudy, 350 U.S.
116, 76 S.Ct. 223, 100 L.Ed. 126; Waley v. Johnston, 316 U.S. 101, 62 S.Ct.
964, 86 L.Ed. 1302; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed.

830.
4

The standards of 2243 and 2255 differ somewhat in phrasing. Compare

2243 (A state prisoner seeking a writ of habeas corpus is to be granted an
evidentiary hearing "unless it appears from the application that the applicant . .
. is not entitled thereto") with 2255 (A federal prisoner moving for relief is to
be granted a hearing "(u)nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief"). However, the
remedy under 2255 was designed to be "exactly commensurate" with the
federal habeas corpus remedy, Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct.
1224, 1230, 51 L.Ed.2d 411; Hill v. United States, 368 U.S. 424, 427, 82 S.Ct.
468, 470, 7 L.Ed.2d 417; United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct.
263, 272, 96 L.Ed. 232, and has been construed in accordance with that design,
e. g., Sanders v. United States, 373 U.S. 1, 6-14, 83 S.Ct. 1068, 1072-1076, 10
L.Ed.2d 148. See also Developments in the Law Federal Habeas Corpus, 83
Harv.L.Rev. 1038, 1173, and n. 126 (1970).
Unlike federal habeas corpus proceedings, a motion under 2255 is ordinarily
presented to the judge who presided at the original conviction and sentencing
of the prisoner. In some cases, the judge's recollection of the events at issue
may enable him summarily to dismiss a 2255 motion, even though he could
not similarly dispose of a habeas corpus petition challenging a state conviction
but presenting identical allegations. Cf. Machibroda, supra, 368 U.S. at 495, 82
S.Ct., at 514 ("Nor were the circumstances alleged of a kind that the District
Judge could completely resolve by drawing upon his own personal knowledge
or recollection"). To this extent, the standard may be administered in a
somewhat different fashion.

See, e. g., United States v. McCarthy, 433 F.2d 591, 593 (CA1); United States
v. LaVallee, 319 F.2d 308, 314 (CA2); Trotter v. United States, 359 F.2d 419
(CA2); United States v. Valenciano, 495 F.2d 585 (CA3); Edwards v. Garrison,
529 F.2d 1374, 1377 (CA4); Bryan v. United States, 492 F.2d 775, 778 (CA5);
Mayes v. Pickett, 537 F.2d 1080, 1082-1083 (CA9); Jones v. United States, 384
F.2d 916, 917 (CA9); United States v. Simpson, 141 U.S.App.D.C. 8, 11, 436
F.2d 162, 165. In citing these cases we do not necessarily approve the result in
any of them.

An analogy is to be found in the law of contracts. The parol evidence rule has
as its very purpose the exclusion of evidence designed to repudiate provisions
in a written integration of contractual terms. Yet even a written contractual
provision declaring that the contract contains the complete agreement of the
parties, and that no antecedent or extrinsic representations exist, does not
conclusively bar subsequent proof that such additional agreements exist and

should be given force. The provision denying the existence of such agreements,
of course, carries great weight, but it can be set aside by a court on the grounds
of fraud, mistake, duress, "or on some ground that is sufficient for setting aside
other contracts." 3 A. Corbin, Contracts 578, p. 403 (2d ed. 1960); see id., at
405-407, and nn. 41, 43.
7

See Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus

Cases (" '(N)otice' pleading is not sufficient, for the petition is expected to state
facts that point to a 'real possibility of constitutional error' "), 28 U.S.C.App., p.
266 (1976 ed.).

Allison's petition stated that his lawyer, "who had consulted presumably with
the Judge and Solicitor," had promised that the maximum sentence to be
imposed was 10 years. This allegation, in light of the other circumstances of
this case, raised the serious constitutional question whether his guilty plea was
knowingly and voluntarily made. See Santobello v. New York, 404 U.S. 257,
92 S.Ct. 495, 30 L.Ed.2d 427; Brady v. United States, 397 U.S. 742, 755, 90
S.Ct. 1463, 1472, 25 L.Ed.2d 747.

See, e. g., Advisory Committee Notes to 1974 Amendment of Fed.Rule

Crim.Proc. 11, 18 U.S.C.App., p. 1304 (1970 ed., Supp. V); ABA Standards,
Commentary 60-64; ALI Code, 350.5, Note and Commentary; President's
Commission on Law Enforcement and Administration of Justice, Task Force
Report: The Courts 9, 12-13, 111, 115 (1967) (hereinafter Task Force Report).

10

The Santabello opinion declared that plea bargaining was "an essential
component" of the criminal process which, "(p)roperly administered, . . . is to
be encouraged." 404 U.S., at 260, 92 S.Ct., at 498.

11

See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763;
Brady v. United States, supra.

12

According to the petitioner's brief, the form of inquiry employed at Allison's

arraignment dates from 1967.

13

See, e. g., United States v. McCarthy, 433 F.2d, at 593; Walters v. Harris, 460
F.2d 988, 993 (CA4); United States v. Williams, 407 F.2d 940, 947-949, and n.
13 (CA4); Bryan v. United States, 492 F.2d, at 780-781; Moody v. United
States, 497 F.2d 359, 362-363, and n. 2 (CA7); United States v. Tweedy, 419
F.2d 192, 193 (CA9); Jones v. United States, 423 F.2d 252 (CA9); White v.
Gaffney, 435 F.2d 1241 (CA10); ABA Standards, Commentary 60-64; Task
Force Report 9, 12-13, 111, 115; A. Trebach, The Rationing of Justice 159-160
(1964).

14

See Advisory Committee Notes to 1974 Amendment of Fed.Rule Crim.Proc.

11, 18 U.S.C.App., p. 1304 (1970 ed., Supp. V); ABA Standards, supra,
Commentary 61-62; Task Force, Report, at 111.

15

There is another ground to support the view that the allegations were not wholly
incredible. Allison was indicted on three separate charges. All three were listed
in the printed arraignment form, but he pleaded guilty to only one of them; the
other two may well have been dismissed pursuant to an agreement. And this is
not a case in which there is a record of the sentencing proceedings, see, e. g.,
United States v. Tweedy, supra; Lynott v. United States, 360 F.2d 586 (CA3),
or where delay by the prisoner in seeking postconviction relief, see, e. g.,
Raines v. United States, 423 F.2d 526, 528 (CA4); United States v. Tweedy,
supra, at 195; see also Machibroda v. United States, supra, 368 U.S., at 498499, 82 S.Ct., at 515-516 (Clark, J., dissenting), undercuts the credibility of his
allegations.

16

For the reasons stated in the text, the "finding" recorded on the printed form
that Allison's plea was entered "understandingly and voluntarily, . . . without
promise of leniency," see n. 1, supra, was not binding under 28 U.S.C.
2254(d) on the District Court. See, e. g., Edwards v. Garrison, 529 F.2d, at
1377-1378, n. 3. See also Machibroda v. United States, supra, 368 U.S. at 494495, 82 S.Ct., at 514 ("The factual allegations (at issue) related primarily to
purported occurrences outside the courtroom and upon which the record could,
therefore, cast no real light"); Friendly, Is Innocence Irrelevant? Collateral
Attacks on Criminal Judgments, 38 U.Chi.L.Rev. 142, 152 (1970).

17

In 1973, the North Carolina Legislature enacted a comprehensive set of

procedures governing disposition by guilty plea and plea arrangement, modeled
after the ALI Model Code of Pre-Arraignment Procedure, Art. 350 (Tent. Draft
No. 5, 1972). One of the stated purposes of the reform was to allow
"defendants to tell the truth in plea proceedings. They should not be expected to
go before judges after plea negotiations and lie by saying no promises or
agreements were made." Official Commentary to Art. 58, N.C.Gen.Stat. ss15A1021 to -1027 (1975). Appendices to the respondent's brief indicate that the
form used by trial judges in conducting plea hearings has twice been amended
since the passage of this legislation.

18

These reforms are quite similar to those undertaken in the 1974 Amendment of
Fed.Rule Crim.Proc. 11, as well as to the recommendations of the ABA
Standards and the ALI Code.

19

A principal purpose of the North Carolina statutory reforms was to permit

quick disposition of baseless collateral attacks. Official Commentary, supra, n.

17 ("If the procedures of plea negotiation are on the record and accurately
reflect the things (legitimately) done, the basis for later challenge is effectively
minimized"). Indeed, a petitioner challenging a plea given pursuant to
procedures like those now mandated in North Carolina will necessarily by
asserting that not only his own transcribed responses, but those given by two
lawyers, were untruthful. Especially as it becomes routine for prosecutors and
defense lawyers to acknowledge that plea bargains have been made, such a
contention will entitle a petitioner to an evidentiary hearing only in the most
extraordinary circumstances.
20

This is not to suggest that a plea of guilty entered pursuant to procedures like
those in effect at Allison's arraignment is necessarily vulnerable to collateral
attack. It is simply to say that procedures like those now in effect in North
Carolina serve (1) to prevent the occurrence of constitutional errors in the
arraignment process, and (2) to discourage the filing of baseless petitions for
habeas corpus and facilitate speedy but fair disposition of those that are filed.

21

Indeed, it would seem easier for the State than for an indigent, untutored
prisoner to obtain affidavits from the principals, particularly given the potential
availability of discovery, see n. 23, infra.

22

Title 28 U.S.C. 636(b)(2), (3) authorize magistrates to assist "a district judge
in the conduct of pretrial or discovery proceedings in civil or criminal actions,"
and preliminary to review "applications for posttrial relief made by individuals
convicted of criminal offenses . . . ." Rule 10 of the newly promulgated Rules
Governing Habeas Corpus Cases similarly authorizes performance by a
magistrate of virtually all the duties of a district judge, except for the exercise
of ultimate decisionmaking authority. See Advisory Committee Note to Rule
10, Wingo v. Wedding, 418 U.S. 461, 473-474, 94 S.Ct. 2842, 2849-2850, 41
L.Ed.2d 879.

23

Rule 6 of the Rules Governing Habeas Corpus, entitled "Discovery," provides:

"(a) Leave of court required. A party shall be entitled to invoke the processes of
discovery available under the Federal Rules of Civil Procedure if, and to the
extent that, the judge in the exercise of his discretion and for good cause shown
grants leave to do so, but not otherwise. If necessary for effective utilization of
discovery procedures, counsel shall be appointed by the judge for a petitioner
who qualifies for the appointment of counsel under 18 U.S.C. 3006A(g).
"(b) Requests for discovery. Requests for discovery shall be accompanied by a
statement of the questions, interrogatories, or requests for admission and a list
of the documents, if any, sought to be produced.

"(c) Expenses. If the respondent is granted leave to take the deposition of the
petitioner or any other person the judge may as a condition of taking it direct
that the respondent pay the expenses of travel and subsistence and fees of
counsel for the petitioner to attend the taking of the deposition."
24

Rule 7 of the Rules Governing Habeas Corpus Cases, entitled "Expansion of

Record," provides:
"(a) Direction for expansion. If the petition is not dismissed summarily the
judge may direct that the record be expanded by the parties by the inclusion of
additional materials relevant to the determination of the merits of the petition.
"(b) Materials to be added. The expanded record may include, without
limitation, letters predating the filing of the petition in the district court,
documents, exhibits, and answers under oath, if so directed, to written
interrogatories propounded by the judge. Affidavits may be submitted and
considered as a part of the record.
"(c) Submission to opposing party. In any case in which an expanded record is
directed, copies of the letters, documents, exhibits, and affidavits proposed to
be included shall be submitted to the party against whom they are to be offered,
and he shall be afforded an opportunity to admit or deny their correctness."

25

There may be cases in which expansion of the record will provide "evidence
against a petitioner's extra-record contentions . . . so overwhelming as to justify
a conclusion that an (allegation of a dishonored plea agreement) does not raise a
substantial issue of fact." Moorhead v. United States, 456 F.2d 992, 996 (CA3).
But before dismissing facially adequate allegations short of an evidentiary
hearing, ordinarily a district judge should seek as a minimum to obtain
affidavits from all persons likely to have firsthand knowledge of the existence
of any plea agreement. See Walters v. Harris, 460 F.2d, at 992. " 'When the
issue is one of credibility, resolution on the basis of affidavits can rarely be
conclusive, but that is not to say they may not be helpful.' " Advisory
Committee Note to Rule 7, Rules Governing Habeas Corpus Cases, 28 U.S.C.,
p. 269 (1976 ed.), quoting Raines v. United States, 423 F.2d 526, 530 (CA4).

26

The correspondence between the Magistrate and Allison pertaining to Allison's

petition for rehearing, see supra, at 70, did not provide such an opportunity. The
Magistrate directed Allison to obtain a notarized statement from his
codefendant, who allegedly had heard Allison's attorney make the promise as to
sentence. Allison was confined in prison and without legal assistance. The
codefendant was confined in a different prison. In these circumstances, the
Magistrate imposed upon Allison a novel and formless burden of supplying
proof, without the benefit of compulsory process and without any intimation

that dismissal would follow if that burden were not met. It can thus hardly be
said that Allison was granted a "full opportunity for presentation of the relevant
facts" or that his petition received "careful consideration and plenary
processing."
*

The importance of finality to the criminal defendant and to society was well put
by Mr. Justice Harlan:
"Both the individual criminal defendant and society have an interest in insuring
that there will at some point be the certainty that comes with an end to
litigation, and that attention will ultimately be focused not on whether a
conviction was free from error but rather on whether the prisoner can be
restored to a useful place in the community." Sanders v. United States, 373 U.S.
1, 24-25, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (dissenting opinion).
See also Schneckloth v. Bustamonte, 412 U.S. 218, 256-266, 93 S.Ct. 2041,
2062-2067, 36 L.Ed.2d 854 (1973) (Powell, J., concurring).