(dissenting):

The appellant’s petition for habeas corpus alleges that his guilty plea was the product of (1) a promise of leniency, and (2) a prior involuntary confession.

To avoid possible future misunderstanding, it should be emphasized that the majority does not hold that appellant’s theory of relief is legally insufficient. Either of the grounds relied upon, if established by proof, would vitiate appellant’s guilty plea, and the majority does not hold to the contrary. The holding is rather that appellant failed to allege either ground adequately.

*328 It has long been axiomatic that a guilty plea induced by a promise of leniency is vulnerable to collateral attack. 1 2 The law has been less clear where the guilty plea was induced by a coerced confession. As the majority points out, there are numerous holdings that a guilty plea cannot be attacked on the bare ground that evidence against the accused was secured by unconstitutional means. The district court based its ruling on these decisions. “But,” as Judge Duniway said in Doran v. Wilson, 369 F.2d 505, 507 (9th Cir. 1966), “there is another side to this legal coin. We have several times held that a guilty plea, ‘induced’ by a coerced confession, or in some other respect not truly voluntary, cannot stand. The basis for these decisions is that a guilty plea must not be a product of violation of fundamental constitutional rights. The distinction is that if such a violation is not claimed to be, or, if so claimed, is not what induced the plea, then reliance upon the violation in habeas corpus by the one who pleaded guilty is not justified because it is the plea, not the deprivation of constitutional right, that brought about the conviction, while the plea can be upset if it was induced by the violation.”

The majority does not purport to overrule Doran and other cases from this circuit2 establishing the rule that a conviction based upon a guilty plea must be set aside if the plea itself resulted from prior violation of the accused’s constitutional rights. No panel of this court would assert such power. 3 Dismissal of appellant’s petition therefore cannot be sustained on the ground relied upon by the district court.

As noted, the holding of the majority is placed upon a different ground. The majority holds that this appellant, despite his efforts to do so, failed to allege adequately that his guilty pleas were the product of either a promise of leniency or an involuntary confession.

The reasons which the majority advances for this conclusion do not seem well taken.

I

The principal rationale of the majority decision seems to be that the material allegations of appellant’s petition are “vague” and “conclusory.”

Although in a proper case the court has power to dismiss a petition for habeas corpus on this ground, it is rarely desirable to do so. The better practice is to direct the petitioner to amend, so that his claim may be decided on its merits with a minimum of delay and wasted effort. 4

Appellant will undoubtedly file a new petition restating in expanded form essentially the same constitutional claim. The district court, and perhaps this court, will then be required to consider the matter anew. Many more months will pass before appellant’s claim is considered on its merits. Nothing of substance will have been accomplished. Far more judicial effort will have been expended simply to formulate the issues than would have been necessary to decide appellant’s claim on the merits at the out *329 set, even if that required a full-scale evidentiary hearing. 5

Moreover, giving the allegations of the petition the liberal construction to which they are entitled, 6 they are sufficient to withstand dismissal.

The allegations regarding a promise of leniency may be unduly cryptic, 7 but those describing the circumstances of appellant’s confession are reasonably clear and in considerable detail. 8 They are at least as adequate, in these respects, as the *330 assertedly “conclusionary” averments which this court sustained in Pembrook v. Wilson, supra, 370 F.2d 37, 39 (9th Cir. 1966).

As to the relationship between his confession and guilty pleas, appellant alleges in so many words that the latter were motivated by fear that the confession would be used against him. 9 Although the majority also finds this allegation “conclusory,” 10 it is difficult to understand how the requisite state of mind could be alleged with greater particularity. Other panels of this court have recently sustained allegations of guilty plea motivation which were similarly direct and unadorned. The allegation approved in Sessions v. Wilson, supra, 372 F.2d 366, 369 (9th Cir. 1966), was that involuntary incriminating statements and confessions “placed ‘Duress’ upon petitioner to enter a plea of ‘guilty.’ ” The allegation held adequate in Doran v. Wilson, supra, 369 F.2d 505 , 506 n. 1 (9th Cir. 1966), read, “the belief that his verbal statement of guilt unconstitutionally obtained would be used against him in a trial to bring about a verdict of guilty was in large part responsible for petitioners plea of guilty.”

II

The majority criticizes appellant’s allegations in a number of other respects. Much of this criticism is based upon a *331 misreading of the petition; the remainder relates to irrelevant matters.

*331 Setting aside appellant’s assertion that his plea was the product of a promise of leniency, his allegations may be summarized as follows:

On February 14, 1951, appellant was arrested and taken to a hospital, grievously wounded. He was interrogated while in an operating room under the influence of drugs which had been administered for the purpose of extracting a confession, and an oral confession was taken. From February 14 until March 1 he was subjected periodically to “merciless” questioning to induce him to sign a written confession. He was held incommunicado and under constant guard throughout this period, and was not brought before a magistrate. His repeated requests for permission to contact his family were denied. He was shown handwritten notes of the oral confession taken while he was drugged. He was told that an officer who had been shot during the commission of the crime had died (which was untrue), that appellant’s brother had signed a confession, and that the only way he could save himself and his brother from execution was to sign a typewritten confession based upon the confession taken while he was drugged. He was not advised of his right to counsel, or of his right to remain silent. He was not told that anything he said could be used against him. He did not know his constitutional rights. The incommunicado interrogation continued until appellant signed a confession on March 1. The public defender and the district attorney told him that the confession thus procured would be used against him if he stood trial. He pleaded guilty for that reason. 11

These allegations make out a prima facie case. If the statement of February 14 was drug-induced, the Fourteenth Amendment would bar its use for any purpose. Townsend v. Sain, 372 U.S. 293, 307-309 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963). The written confession of March 1 would also be barred as “fruit” of the earlier drug-induced statement if obtained by use of the latter in circumstances negating an inference that it “was sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Wong Sun v. United States, 371 U.S. 471, 484-486 , 83 S.Ct. 407, 416 , 9 L.Ed.2d 441 (1963). See also Fahy v. State of Connecticut, 375 U.S. 85, 90-91 , 84 S.Ct. 229 , 11 L.Ed.2d 171 (1963), Moreover, if the March 1 statement was taken in the circumstances alleged — following: an oral confession obtained by interrogation while appellant was severely wounded and drugged; intermittent questioning during an extended period of incommunicado detention; use of the involuntary oral confession; a deliberate falsification to create fear of a murder charge; a threat of the death penalty for the accused and his brother; denial of appellant’s requests for counsel; appellant’s ignorance of his right to remain silent — the confession would be vulnerable to constitutional attack on the additional ground that it did not result from a free and rational choice by appellant to make a statement regarding his involvment in the offense rather than to exercise his constitutional right to remain silent. 12 And as the authorities cited earlier demonstrate, a guilty plea based upon a confession so obtained could not. stand. 13

The faults which the majority finds in appellant’s allegations are considered below in the order stated in the majority opinion.

The majority notes appellant’s “broad charges” that his “pleas were the product of coercion and promise of leniency,” but asserts that the transcript of the sen *332 tencing hearing “shows precisely the contrary state of facts.” One insurmountable difficulty with this assertion is that appellant’s factual allegations “related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light.” Machibroda v. United States, supra, 368 U.S. 487, 494-495 , 82 S.Ct. 510, 514 , 7 L.Ed.2d 473 (1962) 14

The majority suggests that appellant’s guilty pleas “may well have been” based upon “factual knowledge of the crimes charged, and that appellant’s brother had confessed, involving appellant.” But as noted above, appellant alleges that his guilty pleas were based upon a promise of leniency and fear that his involuntary confession would be used against him. Neither the district court nor this court can resolve the factual issues of appellant’s motivation against him on the basis of suppositions as to what that motivation “may well have been”, without hearing appellant’s evidence.

The majority complains that there is no allegation that the effect of the drug administered to appellant on February 14 continued to March 1, when he signed a confession, or thereafter. Such an allegation would furnish an additional factual basis upon which the confession of March 1 would be inadmissible, but it is obviously unnecessary to either of the two grounds of inadmissibility which appellant’s present allegations disclose.

The majority’s further assertion, in the same sentence, that appellant does not allege that he was subject to any other coercive influences when he signed the March 1 confession ignores the whole thrust of appellant’s claim. As noted, appellant alleges that his right to freely choose whether or not to speak about his involvement in the alleged offense was frustrated by a variety of improper influences (including the use of the February 14 drug-induced confession) which began on February 14 and continued until he signed the March 1 confession. Moreover, the absence of coercive influences in the interval between the first and second confessions would not bar relief on the ground that the second confession was the “fruit” of the first.

It is immaterial that improper influences are not alleged to have continued to the time of appellant’s guilty plea, or to the time of his sentencing. As Doran and similar cases hold, it is enough that appellant’s guilty plea was motivated by fear that his illegally obtained confession would be used against him.

It is also irrelevant that appellant does not allege that he was subject to coercion when subsequent to his plea he admitted guilt to a probation officer. Neither the truth or falsity of appellant’s confession nor the guilt or innocence of appellant is at issue. Coerced confessions are excluded whether true or false “because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitional system * * Rogers v. Richmond, 365 U.S. 534, 541 , 81 S.Ct. 735, 739 , 5 L.Ed. 2d 760 (1961). 15 An improperly induced guilty plea is invalid whether the accused is guilty or innocent because the culpable as well as the guiltless are entitled to stand trial and put the government to its proof. “Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty.” Ex Parte Quirin, 317 U.S. 1, 25 , 63 S.Ct. 1 , 9, 87 L.Ed. 3 (1942). 16

*333 The majority’s comment upon the apparent inaccuracy of appellant’s allegation regarding a preliminary hearing is likewise irrelevant to any issue presented.

The majority distinguishes Com. of Pa. ex rel. Herman v. Claudy, supra, 350 U.S. 116 , 76 S.Ct. 223 , 100 L.Ed. 126 , by “color matching” the facts of that case and this. The facts of Com. of Pa. ex rel. Herman v. Claudy may never be precisely duplicated, but the principle there established authorizes collateral attack in every case In which a guilty plea is based upon a confession obtained by unconstitutional means. Appellant’s allegations bring him within that principle.

There is a suggestion in this portion of the majority opinion that it was significant to the decision in Com. of Pa. ex rel. Herman v. Claudy that the state denied some but not all of Herman’s allegations. The majority states, “Such a partial denial is not enough, said the Supreme Court.” Nothing in Com. of Pa. ex rel. •Herman v. Claudy supports this suggestion. To the contrary, the Supreme Court specifically stated that “the proceeding should not be summarily dismissed merely because a state prosecuting officer files an answer denying some or all of the. allegations.” 350 U.S. at 119 , 76 S.Ct. at 225 . (Emphasis added.) Indeed, this must be the rule for a denial of the petitioner’s allegations simply creates a factual issue which must then be resolved on the evidence. Cf. Wright v. Dickson, 336 F.2d 878, 882-883 (9th Cir. 1964), and cases cited therein.

The majority points out that appellant does not complain that he was rushed into tendering his guilty plea; that he describes his interrogation as “merciless” but “on the day of it” 17 signed nothing; that appellant signed his confession sixteen days after the drug was administered, and only after he had seen his brother’s confession implicating him; and that twenty days more elapsed before he pleaded guilty. These and other deprecating references to appellant’s allegations suggest that the decision does not rest upon the inadequacy of appellant’s allegations as to the involuntariness of his confession and the motivation of his plea, but rather upon the majority’s conclusion that these allegations are not to be believed. But the law is clear that a petitioner cannot be denied an opportunity to support his allegations by evidence because the judge thinks they are “improbable and unbelievable” (Walker v. Johnston, 312 U.S. 275, 287 , 61 S.Ct. 574 , 85 L.Ed. 830 (1941)), or “tax credulity” (Waley v. Johnston, 316 U.S. 101,104 , 62 S.Ct. 964 , 86 L.Ed. 1302 (1942)). 18 Only allegations “patently frivolous or false on a consideration of the whole record” may be ignored. Com. of Pa. ex rel. Herman v. Claudy, supra, 350 U.S. 116, 118-119 , 76 S.Ct. 223, 225 (1956). The majority does not undertake to hold that appellant’s allegations fall in the latter category.

The majority’s statement that no threats are alleged ignores appellant’s allegation that he was told that he and his brother could escape execution only if appellant confessed. 19 The absence of an allegation of physical abuse is of course irrelevant. 20 The allegations of appellant’s petition belie on their face the majority’s statement that “the only ‘taint’ to appellant’s confession is that ‘it was allegedly based’ on alleged statements made by appellant when he was allegedly *334 subjected to sodium pentothal,” and that it does not “factually appear” that appellant’s plea was the product of the involuntary confession. 21 The majority's concluding complaint that “Nowhere does appellant urge his innocence or state his confession was untrue,” only repeats an irrelevant circumstance.

The judgment should be reversed.

. Machibroda v. United States, 368 U.S. 487, 493 , 82 S.Ct. 510 , 7 L.Ed.2d 473 (1962); Trotter v. United States, 359 E. 2d 419, 420 (2d Cir. 1966); Lattin v. Cox, 355 F.2d 397, 399 (10th Cir. 1966); Zaffarano v. United States, 306 F.2d 707 (9th Cir. 1962). Cf. Cortez v. United States, 337 F.2d 699 (9th Cir. 1964).

. In addition to other Ninth Circuit cases cited in Doran , see Johnson v. Wilson, 371 F.2d 911 (9th Cir. 1967); Sessions v. Wilson, 372 F.2d 366 (9th Cir. 1966); Hale v. Wilson, 364 F.2d 906 (9th Cir. 1966). The leading case, of course, is Com. of Pa. ex rel. Herman v. Claudy, 350 U.S. 116 , 76 S.Ct. 223 , 100 L.Ed. 126 (1956).

. Ellis v. Carter, 291 F.2d 270 , 273 n. 3 (9th Cir. 1961).

. Sanders v. United States, 373 U.S. 1, 19-20 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1963); Rivera v. United States, 318 F.2d 606, 608-609 (9th Cir. 1963). Cf. Wilson v. Wilson, 372 F.2d 211 (9th Cir. 1967) ; Castro v. Klinger, 373 F.2d 847 (9th Cir. 1967) ; and Pembrook v. Wilson 370 F.2d 37 , 39 n. 4 (9th Cir. 1966).

. One day or less was required in 94% of the evidentiary hearings on habeas corpus applications held in United States district courts during the fiscal year ending June 30, 1966 (528 of 564). Only a fraction of a day was required for 69% of such hearings (387 of 564). Only three required as much as four days. Annual Report of the Administrative Office of the U.S. Courts (1966), Table C8.

A study by Justice Frankfurter reported in Brown v. Allen, 344 U.S. 443, 529 , 73 S.Ct. 397, 437 , 97 L.Ed. 469 (1953), - showed that 16 out of 44 Such hearings required one hour or less, and only one required more than four hours.

. Pembrook v. Wilson, supra, 370 F.2d 37 , 40 n. 5 (9th Cir. 1966); Wright v. Dickson, 336 F.2d 878, 881 (9th Cir. 1964); Pike v. Dickson, 323 F.2d 856 , 857 n. 1 (9th Cir. 1963); State of Oregon ex rel. Sherwood v. Gladden, 240 F.2d 910, 912 (9th Cir. 1957). And see Holiday v. Johnston, 313 U.S. 342, 352 , 61 S.Ct. 1015 , 85 L.Ed. 1392 (1941).

. Appellant alleges simply that his appointed counsel “informed him that the district attorney and the court had agreed to run the sentences concurrently.”

. Appellant alleges:

. In his petition appeEant aEeges: “Petitioner had signed a coerced confession and the public defender and district attorney had told petitioner that the confessions would be used against him at time of trial. Fearing the introduction of the confessions, petitioner pled guilty and threw himself on the mercy of the court.” [R. 19]

In his application for rehearing in the district court, appellant states, “petitioner specifically alleges that pleas were coerced by threat of trial use of sodium pentothal coerced confessions * * [R. 53]

. This appears to be the implication of the majority’s statement that “Nowhere does it factually appear that ‘the pleas were the coerced product of a tainted confession.’ ”

. See notes 8 and 9.

. Davis v. State of North Carolina, 384 U.S. 737 , 86 S.Ct. 1761 , 16 L.Ed.2d 895 (1966); Haynes v. State of Washington, 373 U.S. 503 , 83 S.Ct. 1336 , 10 L.Ed.2d 513 (1963); Gallegos v. State of Colorado, 370 U.S. 49 , 82 S.Ct. 1209 , 8 L.Ed. 2d 325 (1962). Cf. Miranda v. State of Ariz., 384 U.S. 436, 460-462 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

. See note 2.

. See also Sanders v. United States, 373 U.S. 1, 19-20 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1963). Cf. Gladden v. Gidley, 337 F.2d 575 (9th Cir. 1964); Perry v. United States, 332 F.2d 369 (9th Cir. 1964); Brubaker v. Dickson, 310 F.2d 30, 32 (9th Cir. 1962).

. See also Davis v. State of North Carolina, 384 U.S. 737, 739 , 86 S.Ct. 1761 , 16 L.Ed .2d 895 (1966); Haynes v. State of Washington, 373 U.S. 503, 518 , 83 S.Ct. 1336 , 10 L.Ed.2d 513 (1963).

. See also Kercheval v. United States, 274 U.S. 220, 224 , 47 S.Ct. 582 , 71 L.Ed. 1009 (1927); United States v. Morin, 265 F.2d 241, 245 (3d Cir. 1959).

. Appéllant alleges that he was questioned intermittently throughout his lengthy detention. See note 9.

. Cf. Machibroda v. United States, 368 U.S. 487, 495-496 , 82 S.Ct. 510 , 7 L.Ed. 2d 473 (1962); Semet v. United States, 369 F.2d 90, 92 (10th Cir. 1966); United States ex rel. McGrath v. LaVallee, 319 F.2d 308, 312 (2d Cir. 1963).

. See note 8.

. See, e.g., Haynes v. State of Washington, 373 U.S. 503 , 504 n. 1, 83 S.Ct. 1336 , 10 L.Ed.2d 513 (1963); Watts v. State of Indiana, 338 U.S. 49, 53-54 , 69 S.Ct. 1347 , 93 L.Ed. 1801 (1949); Haley v. State of Ohio, 332 U.S. 596, 606 , 68 S.Ct. 302 , 92 L.Ed. 224 (1948) (Frankfurter, J., concurring).

. See notes 8 and 9.