(dissenting):

I respectfully dissent.

Not only is there no adequate factual allegation that Smiley’s plea of guilty in Case No. 156591 was primarily motivated by a confession obtained by physical or mental coercion; he does not even allege that there was a confession.

In the initial petition filed in the district court, the facts alleged were so blended that the court could not determine which facts applied to each conviction. The petition was dismissed with leave to amend, and forms were sent to the petitioner to aid him in properly alleging the facts as to each conviction separately.

With respect to the conviction in Case No. 156591, Smiley made the following allegations in reply to the specific questions set forth in the form furnished him (grammar and spelling have not been corrected);

10. State concisely the grounds on which you base your allegations that you are being held in custody unlawfully:

*150 11. State concisely and in the same order the facts which support each of the grounds set out in (10):

.The question for determination is whether the petition alleges facts which, if proven, would constitute a violation of Smiley’s federal constitutional rights. It is only “where an applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the federal court to which the application is made has the power to receive evidence and try the facts anew.” (Emphasis supplied) Townsend v. Sain, 372 U.S. 293, 312 , 83 S.Ct. 745, 757 , 9 L.Ed.2d 770 .

As stated by the majority, Smiley's search and seizure allegations are without merit (Mapp not retroactive) as are the allegations regarding the failure of the police to advise him of his rights (Miranda not retroactive). But these are the grounds which Smiley contends rendered his plea of guilty invalid and on which he bases his assertion that he is being held in custody unlawfully.

While he alleges he “was forced to sign a type written (sic) statement which was used in court”, he does not allege how it was used in court with relation to his plea of guilty. Neither is there any allegation that the statement included admissions of any kind or whether it was a recitation of extenuating circumstances which might be considered in mitigation of punishment. Having admitted the offense and entered a plea of guilty, the inference is that any statement used in court would be in connection with a pre-sentence report in mitigation of punishment. He also alleges, “They asked questions while they physically beat the petitioner and gave him all kinds of 3rd degree to get a confession.” But he does not allege “they” got a confession, nor does he allege that he confessed to any facts beyond those he still asserts to be true according to the recitation of facts in his petition. While a suspect who has been “physically beat” may have a remedy in the state courts, it is not a violation of any federal constitutional right.

The majority directs attention to Smiley’s traverse to the warden’s return and finds that it supplements and supplies the deficiencies of the petition.

The traverse does not include a single allegation of fact regarding a. confession or relating to any fears with which Smiley might have been obsessed at the time he entered his plea of guilty. Smiley’s traverse is a written argument in *151 reply to the points and authorities attached to the warden’s return. In his argument there are conelusory references to “mental coercion” and several general statements which were taken from cases which he cites. These assertions do not even approach the substance of the allegations in Grove v. Wilson, 368 F.2d 414 (C.A.9) where this court held that a hearing is not required on vague and conelusory allegations.

Neither in his petition nor in his traverse does Smiley allege that he confessed to any facts, and, of even more importance, there is no allegation that his guilty plea was prompted by fear that anything he said to the police would be used against him at a subsequent trial. That issue is simply not in the case. Smiley relies entirely on the Escobedo and Mapp cases and says so, not only when he is asked to “State concisely the grounds on which you base your allegations that you are being held in custody unlawfully”, but also in the traverse to the warden’s return. He states that if he is not released, Escobedo and Mapp should be returned to prison. 1 Nowhere does he allege his plea of guilty was induced by coerced statements or illegally seized evidence.

This case is clearly distinguishable from Doran v. Wilson, 369 F.2d 505 (C.A.9) where the petitioner alleged that he had confessed to the crime, that the confession was coerced while he was under the influence of drugs and that his guilty plea was induced by the confession.

I think that the district judge, mindful of his “delicate role in the maintenance of proper federal-state relations” adhered to the teaching of Townsend v. Sain, supra, and correctly decided the issues presented to him.

Even if we were to assume the district court erred in the disposition of the issues relating to Case No. 15691, I do not believe a reversal would be warranted as the 1963 conviction in Case No. 261469 is clearly valid.

The petitioner in Case No. 261469 alleges that the police entered his home and searched it, but he does not say they seized anything, nor does he say that anything was received in evidence during his trial. He alleges that after six hours of intensive questioning he was forced to sign a statement which was used in court. He does not say how it was used in court and if we were to assume it was received in evidence, he does not allege that any objection was made' to its introduction. Neither does he allege that the statement included any admissions or was incriminating in any way.

Assuming the truth of every fact alleged 2 these allegations do not raise *152 a constitutional question requiring a hearing by a federal court. See Townsend v. Sain, supra, 372 U.S. at page 312 , 83 S.Ct. 745 .

With respect to his 1963 conviction, he also alleges the police failed to advise him of his rights. This ground is without merit as Miranda v. State of Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 , decided on June 13, 1966, upon which he necessarily relies, is not to be applied retroactively. Johnson v. State of New Jersey, 384 U.S. 719, 721 , 86 S.Ct. 1772 , 16 L.Ed.2d 882 .

Because in the 1963 conviction, “it appears from the application that the applicant or person detained is not entitled thereto” ( 28 U.S.C. § 2243 ), the issuance of a writ or an order to show cause is not required and thus the petition was properly disposed of.

Since the commitment in the 1963 conviction is valid, it is not necessary, in view of the doctrine of McNally v. Hill, 293 U.S. 131 , 55 S.Ct. 24 , 79 L.Ed. 238 , to consider the validity of the other convictions. Inasmuch as Smiley was not on parole from the 1963 conviction, the exception carved out of the McNally doctrine referred to in the majority opinion, could have no application.

I would affirm.

. In his brief filed with this court, Smiley says,

. The full and complete allegations of the applicant with respect to Case No. 261469 were as follows (grammar and spelling have not been corrected):

10. State concisely the grounds on which you base your allegations that you are being held in custody unlawfully: