Before HINCKS, PICKETT and MOORE, Circuit Judges.
The appellant, under service of sentence in the federal penitentiary in Alcatraz, California, by motion filed July 9, 1957 in the United States District Court for the Southern District of New York, in which he had been convicted of bank robbery, sought a writ in the nature of a writ of error coram nobis to examine into grounds dehors the trial record upon which he contends his conviction should be vacated, citing as procedural authority for his motion United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248. The motion was dismissed on the record below without a hearing. By another panel of the court a motion for leave to appeal in forma pauperis was granted since the court doubted that the appeal should be classified as frivolous. But the court refused to assign counsel saying: "It appearing that the defendant pleaded guilty when represented by competent counsel, it would be an imposition on the Bar to assign another lawyer to attack the plea."*fn1
In his motion the appellant alleged that after indictment for bank robbery, in April 1955 while awaiting trial on a plea of not guilty, he was interviewed by two F.B.I. agents in the Federal Courthouse who refused him contact with counsel and held him incommunicado. His motion further recited: "that they tried to implicate me in a bank robbery case; they showed me papers saying they had proof to connect me with the crime; that I denied such guilt; that 'finally' they threatened to put my child in an orphan home, and arrest my common law wife to force me to say I was guilty; that they further threatened me by saying that unless I pleaded guilty they would get a conviction anyway and tell the judge to give me a 25 year consecutive term in addition to the sentence I already had. Finally they broke my resistence and I made statements in regard to a crime of which I knew nothing; that the F.B.I. agents told me what to say and do when I went to Court, which I did, i.e., waive my rights and plead guilty; that the judge imposed a 20 year term; that I pleaded guilty and waived my rights solely because of the threats and promises and fear caused by the F.B.I. Wherefore, may this Court hold a hearing forthwith to determine this factual issue which was unknown to the Court at time of trial. May a writ of habeas corpus ad testificandum issue for the production of defendant before this Court on July 22, 1957 to support the allegation of this motion."
In opposition to the motion were filed affidavits of Assistant United States Attorneys, the F.B.I. agents who had interviewed the appellant, and a Supervisor of the Federal Detention Headquarters who flatly denied the appellant's assertions of threats or coercion.
The court records showed that prior to arraignment a member of the staff of the New York Legal Aid Society had been assigned to represent the appellant; that while so represented the appellant had on April 21, 1955 pleaded not guilty; and that subsequently, on May 2, 1955, a member of the Legal Aid staff informed the court of a change of plea and thereupon in open court with the appellant at the bar the following transpired.
"The Court: You want to change your plea from not guilty and plead guilty and you know what you are doing and you have had an opportunity to talk with your attorney?
"The Defendant Smith: Yes."
Whereupon the indictment was read and the following transpired.
"The Clerk: Mr. Smith, do you understand that?
"The Clerk: Do you wish to change your plea of not guilty to guilty?
The Government's papers in opposition to the motion also included an affidavit by the appellant's counsel, an experienced member of the staff of the Legal Aid Society who was with him at the change of plea, saying that "Before they changed their pleas, I conferred with them as to the facts of the case and as to the consequences of their plea of guilty. I also represented them on the sentence. I would not have participated in the plea of guilty if I ...