Aldisert, Gibbons and Rosenn, Circuit Judges. Max Rosenn, Circuit Judge (dissenting).
When appellant appeared in 1955 at a juvenile certification hearing, case law, as then articulated, did not mandate assistance of counsel. This appeal requires us to decide whether a subsequent entry of a counseled plea of guilty as an adult offender forecloses a collateral attack on that plea based on later pronouncements of the courts requiring the presence of counsel at juvenile certification proceedings.
Represented by counsel whose competence is not challenged, appellant, in May, 1955, entered a plea of non vult to a charge of murder in a New Jersey court.*fn1 He was sentenced to life imprisonment. Eleven years later he sought federal habeas corpus relief, alleging a Sixth Amendment deprivation of counsel at the juvenile court proceeding which certified that he be tried as an adult offender. N.J.S.Anno. 2A:4-14 and 15. The habeas court granted a conditional writ, giving the state an opportunity to hold a second certification hearing with court-appointed counsel. Appellant has appealed from the result of this second certification hearing which was conducted in 1968 before the same juvenile court judge who heard his case in 1955. The district court found that the second hearing satisfied the requirements it had imposed.
Although we concur in the result reached by the district court, we do it for other reasons. We are persuaded that the writ of habeas corpus should have been denied for the reasons set forth in McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763; Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785; Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970).
We do not reach the question of the adequacy of counsel at the second certification hearing because in our view the remand for this purpose was not required. The McMann trilogy held that where there was a counseled plea of guilty, the relator was not, without more, entitled to a hearing on a petition for writ of habeas corpus alleging that the plea was entered because of a prior coerced confession.
With one exception, this court has unswervingly followed the mandate of these cases.*fn2 The only deviation appeared in the troublesome case of Bannister v. United States, 446 F.2d 1250 (3d Cir. 1971) (en banc), where a majority of the court, for various reasons, held that the trilogy would not apply to a prosecution under 26 U.S.C. § 4744(a) (2) where the plea was entered before Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), which announced that a timely and proper assertion of the privilege against self-incrimination was a complete defense to the prosecution. The plurality opinion of Judge Biggs emphasized that constitutional rights created by Leary could not be waived in advance, because the Leary right was not procedural but constituted a total defense. Judge Gibbons' plurality opinion, suggesting that Leary in reality invalidated the statute under which he was indicted, stated:
We do not quarrel with the proposition that every change in the procedural law governing the criminal justice system cannot be the means for casting wholesale doubt upon the vast bulk of criminal judgments which result from guilty pleas. But the Brady, McMann and Parker cases involved changes in the law which were essentially procedural. They did not involve petitioners confined as a result of a guilty plea to an offense under a statute later held to be unconstitutional as applied to them and their conduct.
Thus, whether we apply the general rule of the guilty plea trilogy depends on the quality of the right sought to be asserted in the collateral attack. Does the newly-expressed right affect, what Judge Biggs in Bannister termed, "the integrity of the conviction," 446 F.2d at 1255, or does it constitute what Judge Gibbons described as an "essentially procedural" change in the law, 446 F.2d at 1264?
We are persuaded that the requirement of counsel at a juvenile certification hearing constituted a purely procedural right. The newly-conferred right to counsel carries no guarantee of a change in the result of the certification hearing. Indeed, putting aside the argument of inadequate counsel, the same judge who certified appellant as an adult offender in 1955 reached the identical conclusion following the second certification hearing thirteen years later in October, 1968. Moreover, the opportunity to have a juvenile court hearing is afforded by a New Jersey statute; it is not mandated by the federal constitution. Indeed, even if appellant were to be tried as a juvenile, the only practical distinction would be the difference in sentence and the opportunity of parole. Compare N.J.S.Anno. 2A:4-37 (Juvenile) with N.J.S.Anno. 30:4-123.11 (Life Sentence: Adult). "A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended . . . the likely penalties attached to alternative courses of action. Brady, supra, 397 U.S. at 757, 90 S. Ct. at 1473.
In sum, we find it difficult to accept the hypothesis that Fifth Amendment protection against self-incrimination, so basic to the Bill of Rights, may be waived by a properly counseled guilty plea, but that a Sixth Amendment right to counsel at a hearing that simply determines which of two judicial formus may try a defendant is a more significant right; a right of such fundamental importance that it can survive a later counseled plea of guilty.
Accordingly, we hold that Smith's plea of guilty "intelligently made in the light of the then applicable law [did] not become vulnerable because [of] later judicial decisions," Brady, supra, which conferred ...