Kiley, Fairchild and Stevens, Circuit Judges.
FAIRCHILD, Circuit Judge.
Petitioners appeal from the district court's denial of their motions under 28 U.S.C. § 2255 to vacate sentences imposed upon pleas of guilty to violating certain counterfeiting laws. Two of the issues raised in the district court were that the guilty pleas were induced by threats and promises of counsel and that the offenses resulted from entrapment. The issues raised on appeal by appointed counsel are that the trial court erred in failing to hold an evidentiary hearing on the guilty plea and entrapment issues and that the sentencing judge should have disqualified himself from hearing the § 2255 motions. Petitioners raise, by pro se brief, the additional issue that the court predicated their sentences upon information contained in pre-sentence investigation reports rather than upon the offenses charged in violation of the fifth amendment protection from double jeopardy.
Failure to hold evidentiary hearing.
A. On the guilty plea issue.
In their § 2255 motions petitioners assert:
"In further violation of petitioner's rights he did not have adequate counsel in that his attorney, and co-defendant's attorney told him that he would get probation upon entering a plea of guilty, but if he pleaded not guilty he was going to be (hung), for one of petitioner's co-defendants was going to be a witness for the government in the prosecution of petitioner, and his other co-defendants. In this instance petitioner's rights were violated by attorney's false statements, and petitioner did not get probation as promised."
Petitioners argue that their guilty pleas were involuntary because of counsel's alleged remarks and that they were erroneously denied an evidentiary hearing on that issue.
Title 28, U.S.C. § 2255, provides:
" Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the United States Attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." (Emphasis added.)
We must therefore determine whether petitioners' motions and the files and records in this case conclusively show that their guilty pleas were voluntarily entered. If so, they are not entitled to a hearing.*fn1 Furthermore, we must accept petitioners' factual allegations as true except to the extent that they are inherently incredible, merely conclusory rather than statements of fact, or are contradicted by the record.*fn2
Prior to accepting petitioner Lessaris' plea of guilty the following colloquy occurred:
"Mr. Golka: Your Honor, the defendant Lessaris at this time would ask leave of the Court to withdraw his plea of not guilty and enter a plea of guilty.
THE COURT: Mr. Lessaris, you understand, I am sure, you are entitled to a trial by a jury or by the Court if you desire to ...