Unpublished Disposition, 860 F.2d 1089 (9th Cir. 1983)

No. 87-2042.

United States Court of Appeals, Ninth Circuit.

Before SKOPIL and O'SCANNLAIN^* , Circuit Judges, and JAMES M. BURNS,^**  District Judge.

MEMORANDUM^*** 

Donnell Thomas and his co-defendants were charged with first degree murder. The murder took place on October 4, 1969 during the robbery of a liquor store in Tucson, Arizona.¹ 

Thomas appeals Judge Strand's denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. He contends that he was denied due process because Gilbert Alzua, a witness for the state at Thomas's 1970 trial, gave testimony that he later recanted and that the state knew or should have known that Alzua had given false testimony. Thomas also claims he did not receive a full and fair hearing on his claim that the prosecutor knowingly used Alzua's allegedly perjured testimony.

We review the district court's dismissal of the habeas corpus petition de novo, bearing in mind that a presumption of correctness is to be given to the state court's findings of fact. 28 U.S.C. § 2254(d). See Prantil v. California, 843 F.2d 314, 316 (9th Cir. 1988); LaMere v. Risley, 827 F.2d 622, 623, (9th Cir. 1987). We affirm the district court's dismissal of the petition.

DISCUSSION

The U.S. Supreme Court made it clear in Sumner v. Mata, 455 U.S. 591, 595, 102 S. Ct. 1303, 1304 (1982), that 28 U.S.C. § 2254(d), " [R]equires federal courts in habeas proceedings to accord a presumption of correctness to state court findings of fact. This requirement could not be plainer. The statute²  explicitly provides that 'a determination after a hearing on the merits of a factual issue, made by a state court of competent jurisdiction ..., shall be presumed to be correct.' Only when one of seven specified factors is present or the federal court determines that the state court finding of fact 'is not fairly supported by the record' may the presumption properly be viewed as inapplicable or rebutted." See also Maxwell v. Sumner, 673 F.2d 1031, 1035 (9th Cir. 1982), cert. denied 459 U.S. 976, 103 S. Ct. 313 (1982). Thomas urges this court to find that Judge Strand erred by accepting the factual findings made by Judge Meehan. Following a full evidentiary hearing conducted on April 19, 1983 and continued on May 9, 1983, Judge Meehan found that Alzua's testimony was not creditable and that there was no evidence of prosecutorial misconduct.³  Judge Strand, of the Federal District Court, reviewed Magistrate Mignella's report and recommendation⁴  and concluded that the state court conducted a fair and full hearing on the issue of whether or not the State knowingly used perjured testimony to convict Thomas.⁵ 

Recanted testimony is considered inherently unreliable and the trial judge is in the best position to observe and evaluate the credibility of witnesses and their testimony. State v. Hickle, 133 Ariz. 234, 650 P.2d 1216, 1226 (1982). Judge Meehan observed both Rex Angeli and Gilbert Alzua testify on the issue of whether the state knew or should have known that Alzua gave perjured testimony. As to Judge Meehan's finding that Alzua's testimony was not creditable, the record indicates that the trial court considered the following facts: (1) Alzua waited 12 years before recanting his testimony. He then recanted his testimony on September 27, 1982. On March 23, 1983 he repudiated his September 27, 1982 recantation. Then on May 9, 1983 he disclaimed the March 23, 1983 repudiation of his September 27, 1982 recantation; (2) Alzua was afraid of being sent to the Arizona State Prison where Thomas was imprisoned.⁶  These facts clearly support Judge Meehan's skeptical view as to the reliability of Alzua's testimony.

The finding that there was no prosecutorial misconduct is not fully supported by the record.⁷  Indeed, the prior proceedings reflect some misconduct occurred. However, the petitioner was not seriously prejudiced so as to require reversal of our previous ruling in Thomas v. Cardwell, 626 F.2d 1375, 138 n. 24, (9th Cir. 1980), cert. denied, 449 U.S. 1089, 101 S. Ct. 881 (1981). A federal court can only reverse a state conviction when it finds the petitioner's rights have been violated under the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254. See Donnelly v. De Christoforo, 416 U.S. 637, 642-43, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431 (1974). (Prosecutor's comments in the state trial did not reach the level of error that would result in a denial of due process.)

This case follows from a habeas corpus petition from a conviction by the Arizona State trial court. The alleged prosecutorial misconduct did not occur in the context of a federal prosecution but rather in the state court. In Thomas, 626 F.2d at 1383 n. 24, we said:

[W]e might be inclined to reverse if the prosecutorial misconduct here had occurred in the context of a federal prosecution. But the present case stems from a state conviction.... In this situation, a federal court does not have broad supervisory powers over the administration of justice in the state court.

Here, as before, we have no supervisory power to "look over the shoulder" of the state court, but rather, our task is to determine if the petitioner's custody is in violation of the Constitution, laws or treaties of the United States. We find that the state court record considered as a whole, fairly supports the factual determinations made by Judge Meehan, despite his failure to acknowledge that some misconduct occurred.

An evidentiary hearing must be held in response to an habeas corpus petition only when (1) a right to relief would be established if the allegations were proved; and (2) following a full and fair trial, the state court trier of fact did not reliably find the relevant facts.⁸  Townsend v. Sain, 372 U.S. 293, 312-13, 83 S. Ct. 745, 747 (1963); Van Pilon v. Reed, 799 F.2d 1332, 1337-38 (9th Cir. 1986).

Even assuming Thomas met the first criterion, the record shows that the state trial court performed a full and fair hearing on the issues that petitioner is rearguing before the court today. Merely the existence of newly discovered evidence relevant to petitioner's guilt is not a basis on which habeas corpus relief is granted. Where evidence is crucial to the consideration of a constitutional claim and the state court did not fully develop the claim, a federal hearing is required. Townsend, 372 U.S. at 317, 83 S. Ct. at 759; Anderson v. Maggio, 555 F.2d 447, 451 (5th Cir. 1977). Here, the new evidence which Thomas seeks to explore is evidence of an agreement between Alzua and the state. Judge Meehan adequately explored this issue in May 1983 when he took testimony from Rex Angeli and Gilbert Alzua and considered the deposition of Horton Weiss along with other evidence.

CONCLUSION

The record reflects that a full and fair hearing was held on the issue of whether or not the state used false testimony by Alzua to convict Thomas. It is apparent that in Thomas's 1970 state court trial both sides of this issue were presented to the fact-finders.⁹  We therefore affirm Judge Strand's ruling and uphold Judge Meehan's factual findings.