Before HASTINGS, Chief Judge, and SCHNACKENBERG and KNOCH, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Marvin Spires appeals from an order of the district court sustaining a motion to dismiss his petition for a writ of habeas corpus, directed against Alfred F. Dowd, warden of the Indiana state prison, in which petitioner is confined.
We now set forth the relevant facts found in the petition for habeas corpus.
Petitioner was charged by affidavit, filed October 12, 1946, No. 7641, in the circuit court of Clark county, Indiana, with the crime of bank robbery while armed, and being an habitual criminal. There was then pending another affidavit, No. 7632, filed in said court on September 26, 1946, charging the same crime of bank robbery while armed. On September 27, 1946, petitioner, without counsel, entered a plea of not guilty to affidavit No. 7632. This charge was dismissed without further action on June 18, 1953.
On October 12, 1946, petitioner, without counsel, entered a plea of not guilty to affidavit No. 7641. Four days later, which included three nights and Sunday, the plea of not guilty on affidavit No. 7641 was, without petitioner's consent and over his objections, withdrawn by a court-appointed attorney, who substituted an unauthorized plea of guilty. Judgment was immediately entered and petitioner was sentenced to life imprisonment and delivered to the prison where he is still confined under color of authority of said judgment and sentence.
Burns' Indiana Statutes, 1942 Replacements, § 9-908, provides:
"All public offenses, except treason and murder, may be prosecuted in the circuit or criminal court, by affidavit filed in term time, in all cases except when a prosecution by indictment or affidavit for the same offense is pending at the time of the filing of such affidavit. * * *"
On March 17, 1957, Judge James L. Bottorff of the circuit court of Clark county, Indiana, wrote a letter to the then warden of the Indiana state prison, objecting to letters, inquiries and legal pleadings from petitioner to said judge and the clerk of his court and requesting that such be prohibited, including the mailing of legal pleadings for and in behalf of petitioner to said court. Thereupon said warden, on March 25, 1957, issued a written order forbidding petitioner to correspond either with Judge Bottorff or the clerk of the Clark county circuit court. There is no allegation that this order has ever been rescinded.
As a result thereof, the writ of error coram nobis, a remedy potentially available to petitioner under Indiana law to review the legality of his detention, has been, since March 25, 1957, unavailable to him, and he has been without any corrective remedy to redress in the state courts his alleged illegal conviction and imprisonment. Therefore, he contends, he is deprived of his liberty without due process of law, in violation of the fourteenth amendment to the constitution of the United States.
Respondent's motion to dismiss avers that petitioner has made no showing that "he has exhausted the state remedy of error coram nobis as to certain matters set forth in the petition, and as to certain other matters there is no showing by the Petitioner that he has any substantial grounds * * *".*fn1
To support the judgment of the district court, respondent relies on the folowing proposition of law: petitioner's allegations of fact in his petition are insufficient to show an exhaustion of his available post-conviction remedies.
It is the contention of petitioner that if he is permitted to mail from the prison his petition for a writ of error coram nobis, he will be able thereby to seek redress of his rights from the Indiana courts on the following grounds, inter alia : He was convicted upon a void affidavit, he was not given sufficient time to secure counsel of his own choice or prepare a defense, and he was convicted upon a plea of guilty entered without his consent and over his objections.
We believe that petitioner is entitled to have the district court act upon the facts as alleged in his petition, or, if respondent wishes to file an answer traversing its allegations, that a hearing on ...