dissenting.

I respectfully dissent. Well before Leyva’s 1958 conviction, the Supreme Court had established that a defendant cannot give a knowing waiver of his right to counsel when pleading guilty unless he understands “the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.” Von Moltke v. Gillies, 332 U.S. 708, 724 , 68 S.Ct. 316 , 92 L.Ed. 309 (1948). The 1972 state court decision that Leyva’s - waiver was knowing and voluntary was based on an unreasonable application of clearly established Supreme Court law in light of the evidence presented at the state court evidentiary hearing.

The majority rests its decision on the fact that the 1972 hearing found the testimony of the trial judge from the 1958 proceedings to be credible. However, the trial judge only testified that he believed Leyva “understood everything that was going on.” He did not provide any affirmative evidence that anyone, at any point, explained to Leyva the consequences of pleading guilty or the nature of the punishment he faced. In fact, the trial judge himself testified that he did not discuss alternatives of sentencing, nor the consequences of a guilty plea, with Leyva. There is no other evidence in the record that indicates that anyone explained these issues to Leyva. Thus, the majority’s affirmation of the state court determination that Leyva knew “the nature of the proceedings against him, the nature of the crime charged, and the consequences of what was happening,” supra at-, finds no support in the record.

*3 The state court further erred by failing to respond to Leyva’s undisputed testimony that he was repeatedly warned that he would be “gassed” if he did not plead guilty. These fear-inducing threats to Leyva’s life if he did not plead guilty, combined with his young age, lack of education, and the racial undertones of the prosecution, all bear a striking resemblance to Moore v. Michigan, 355 U.S. 155 , 78 S.Ct. 191 , 2 L.Ed.2d 167 (1957). In Moore , the Supreme Court stated, “A rejection of federal constitutional rights motivated by fear cannot, in the circumstances of this case, constitute an intelligent waiver.” Id. at 164 . Given the undisputed fact that no one accurately explained to Leyva the nature of his sentence or the consequences of a guilty plea, combined with the repeated threats to Leyva’s life should he choose not to plead guilty, I would find that under Moore and Von Moltke , Leyva’s waiver of counsel and guilty plea were constitutionally infirm and cannot stand.