exist and, if so, insured that it was not ignored.19 But the salutary reforms recently implemented by North Carolina highlight even more sharply the deficiencies in the record before the District Court in the present case.20

This is not to say that every set of allegations not on its face without merit entitles a habeas corpus petitioner to an evidentiary hearing. As in civil cases generally, there exists a procedure whose purpose is to test whether facially adequate allegations have sufficient basis in fact to warrant plenary presentation of evidence. That procedure is, of course, the motion for summary judgment. Upon remand the warden will be free to make such a motion, supporting it with whatever proof he wishes to attach. If he chooses to do so, Allison will then be required either to produce some contrary proof indicating that there is a genuine issue of fact to be

21

19 A principal purpose of the North Carolina statutory reforms was to permit quick disposition of baseless collateral attacks. Official Commentary, supra, n. 17 ("If the procedures of plea negotiation are on the record and accurately reflect the things (legitimately) done, the basis for later challenge is effectively minimized"). Indeed, a petitioner challenging a plea given pursuant to procedures like those now mandated in North Carolina will necessarily be asserting that not only his own transcribed responses, but those given by two lawyers, were untruthful. Especially as it becomes routine for prosecutors and defense lawyers to acknowledge that plea bargains have been made, such a contention will entitle a petitioner to an evidentiary hearing only in the most extraordinary. circumstances.

20 This is not to suggest that a plea of guilty entered pursuant to procedures like those in effect at Allison's arraignment is necessarily vulnerable to collateral attack. It is simply to say that procedures like those now in effect in North Carolina serve (1) to prevent the occurrence of constitutional errors in the arraignment process, and (2) to discourage the filing of baseless petitions for habeas corpus and facilitate speedy but fair disposition of those that are filed.

21 Indeed, it would seem easier for the State than for an indigent, untutored prisoner to obtain affidavits from the principals, particularly given the potential availability of discovery, see n. 23, infra.

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Opinion of the Court

resolved by the District Court or to explain his inability to provide such proof. Fed. Rules Civ. Proc. 56 (e), (f).

Moreover, as is now expressly provided in the Rules Governing Habeas Corpus Cases, the district judge (or a magistrate to whom the case may be referred) 22 may employ a variety of measures in an effort to avoid the need for an evidentiary hearing. Under Rule 6,23 a party may request and the judge may direct that discovery take place, and "there may be instances in which discovery would be appropriate [before an evidentiary hearing, and would show such a hearing] to be unnecessary Advisory Committee note

to Rule 6, Rules Governing Habeas Corpus Cases, 28 U. S. C.,

22 Title 28 U. S. C. §§ 636 (b) (2), (3) authorize magistrates to assist "a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions," and preliminarily to review "applications for posttrial relief made by individuals convicted of criminal offenses . . . ." Rule 10 of the newly promulgated Rules Governing Habeas Corpus Cases similarly authorizes performance by a magistrate of virtually all the duties of a district judge, except for the exercise of ultimate decisionmaking authority. See Advisory Committee Note to Rule 10, 28 U. S. C., p. 274 (1976 ed.); Wingo v. Wedding, 418 U. S. 461, 473–474.

23 Rule 6 of the Rules Governing Habeas Corpus, entitled "Discovery," provides:

"(a) Leave of court required. A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise. If necessary for effective utilization of discovery procedures, counsel shall be appointed by the judge for a petitioner who qualifies for the appointment of counsel under 18 U. S. C. § 3006A (g).

"(b) Requests for discovery. Requests for discovery shall be accompanied by a statement of the questions, interrogatories, or requests for admission and a list of the documents, if any, sought to be produced.

"(c) Expenses. If the respondent is granted leave to take the deposition of the petitioner or any other person the judge may as a condition of taking it direct that the respondent pay the expenses of travel and subsistence and fees of counsel for the petitioner to attend the taking of the deposition.”

p. 268 (1976 ed.). Under Rule 7,2 the judge can direct expansion of the record to include any appropriate materials that "enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing." 25

In short, it may turn out upon remand that a full evidentiary hearing is not required. But Allison is "entitled to careful consideration and plenary processing of [his claim,] including full opportunity for presentation of the relevant

24 Rule 7 of the Rules Governing Habeas Corpus Cases, entitled "Expansion of Record," provides:

"(a) Direction for Expansion. If the petition is not dismissed summarily the judge may direct that the record be expanded by the parties. by the inclusion of additional materials relevant to the determination of the merits of the petition.

"(b) Materials to be added. The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as a part of the record.

"(c) Submission to opposing party. In any case in which an expanded record is directed, copies of the letters, documents, exhibits, and affidavits proposed to be included shall be submitted to the party against whom they are to be offered, and he shall be afforded an opportunity to admit or deny their correctness."

25 There may be cases in which expansion of the record will provide "evidence against a petitioner's extra-record contentions SO overwhelming as to justify a conclusion that an [allegation of a dishonored plea agreement] does not raise a substantial issue of fact." Moorhead v. United States, 456 F. 2d 992, 996 (CA3). But before dismissing facially adequate allegations short of an evidentiary hearing, ordinarily a district. judge should seek as a minimum to obtain affidavits from all persons likely to have firsthand knowledge of the existence of any plea agreement. See Walters v. Harris, 460 F. 2d, at 992. ""When the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive, but that is not to say they may not be helpful.'" Advisory Committee Note to Rule 7, Rules Governing Habeas Corpus Cases, 28 U. S. C., p. 269 (1976 ed.), quoting Raines v. United States, 423 F. 2d 526, 530 (CA4).

facts." Harris v. Nelson, 394 U. S., at 298. See Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 Harv. L. Rev. 321, 337-338 (1973).26 Upon that understanding, the judgment of the Court of Appeals is affirmed.

It is so ordered.

THE CHIEF JUSTICE concurs in the judgment.

MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.

MR. JUSTICE POWELL, concurring.

I join the opinion of the Court, and write briefly only to emphasize the importance of finality to a system of justice.* Our traditional concern for "persons whom society has

26 The correspondence between the Magistrate and Allison pertaining to Allison's petition for rehearing, see supra, at 70, did not provide such an opportunity. The Magistrate directed Allison to obtain a notarized statement from his codefendant, who allegedly had heard Allison's attorney make the promise as to sentence. Allison was confined in prison and without legal assistance. The codefendant was confined in a different prison. In these circumstances, the Magistrate imposed upon Allison a novel and formless burden of supplying proof, without the benefit of compulsory process and without any intimation that dismissal would follow if that burden were not met. It can thus hardly be said that Allison was granted a "full opportunity for presentation of the relevant facts" or that his petition received "careful consideration and plenary processing."

*The importance of finality to the criminal defendant and to society was well put by Mr. Justice Harlan:

"Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community." Sanders v. United States, 373 U. S. 1, 24-25 (1963) (dissenting opinion).

See also Schneckloth v. Bustamonte, 412 U. S. 218, 256-266 (1973) (POWELL, J., concurring).

grievously wronged and for whom belated liberation is little enough compensation," Fay v. Noia, 372 U. S. 391, 441 (1963), has resulted in a uniquely elaborate system of appeals and collateral review, even in cases in which the issue presented has little or nothing to do with innocence of the accused. The substantial societal interest in both innocence and finality of judgments is subordinated in many instances to formalisms.

The case before us today is not necessarily an example of abuse of the system. It is an example, however, of how finality can be frustrated by failure to adhere to proper procedures at the trial court level. I do not prejudge the ultimate result in this case by saying that respondent's guilty plea may well have been made knowingly and voluntarily. The case is here, five years after respondent's conviction, and following review by the North Carolina courts, the United States District Court, and the Court of Appeals for the Fourth Circuit, primarily because the record before us leaves room for some doubt as to the reliability of the procedure followed with respect to the guilty plea. All that we have in the record, as a basis for testing the possible merit of respondent's petition, are answers to a printed form certified by the trial judge. We do not know whether anything was said by the judge, the prosecutor, or counsel for respondent, other than the questions read from the form and the monosyllabic answers by respondent. There was no transcript of the proceedings.

As the Court's opinion indicates, there is every reason to believe that if a procedure similar to that prescribed by the new North Carolina statute is followed, a contention such as that made by respondent will justify an evidentiary hearing "only in the most extraordinary circumstances." Ante, at 80 n. 19. If all participants in the process at the plea stage are mindful of the importance of adhering carefully to prescribed procedures and of preserving a full record thereof, the causes of justice and finality both will be served.