United States of America Ex Rel. McKinley Williams v. Hon. Harold W. Follette, Warden of Green Haven State Prison, Stormville, New York ( 1971 )

J. JOSEPH SMITH, Circuit Judge:

This case is before us on remand from the Supreme Court (McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)) for reassessment of other claims of the petitioner for habeas corpus in the light of the ruling that the claim that the plea of guilty rested on a coerced confession and was entered prior to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) was insufficient in law.^* On such reassessment, we adhere to the view that petitioner’s allegations are adequate to require a hearing in the district court, and remand the case to the district court for the Southern District of New York for such a hearing.

In his petition, filed pro se, and the papers incorporated therein by reference Williams claims that he was absent from the state at the time of the crime and that counsel knew this, that counsel misled him into pleading guilty to a felony charge, misrepresenting that he was pleading to a misdemeanor and failing to explain the consequences of the plea. He explains the failure to provide a supporting affidavit by counsel by the fact that he has been unable to locate counsel (since disbarred). Williams was twenty years old at the time of plea. We think that there is enough in Williams’ allegations of incompetence and misconduct of counsel quite apart from the Jackson v. Denno issue to require a hearing. Reversed and remanded.

* Petitioner was discharged from custody July 24, 1970 after reduction of his sentence by six months by order of a state judge. Since this was his first felony conviction, however, the case is not moot.