Subilosky v. Callahan, 82-1005

• Decision Date: 24 September 1982
• Docket Number: No. 82-1005,82-1005
• Citation: 689 F.2d 7
• Parties: Joseph A. SUBILOSKY, Petitioner, Appellant, v. William CALLAHAN, Superintendent, Mci-Norfolk, Massachusetts, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 7

689 F.2d 7

Joseph A. SUBILOSKY, Petitioner, Appellant, v. William CALLAHAN, Superintendent, Mci-Norfolk, Massachusetts, Respondent, Appellee.

No. 82-1005.

United States Court of Appeals, First Circuit.

Argued June 7, 1982.

Decided Sept. 24, 1982.

Sibley P. Reppert, Boston, Mass., with whom Peter M. Lauriat, and Herrick & Smith, Boston, Mass., were on brief, for petitioner, appellant.

Linda G. Katz, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Stephen R. Delinsky, Chief, Criminal Bureau, and Barbara A.H. Smith, Asst. Atty. Gen., Chief, Crim. Appellate Div., Boston, Mass., were on brief, for respondent, appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, Chief District Judge. ^*

PETTINE, Chief District Judge.

Petitioner appeals from an order of the district court denying his petition for a writ of habeas corpus. Petitioner asserts that the district court applied an incorrect legal standard for reviewing his claims, and that it erroneously refused to grant his petition. We affirm.

Petitioner was convicted in Massachusetts State Court on 13 counts, including murder and armed robbery stemming from a bank robbery on August 27, 1965, and the resulting slaying of a bank teller. Three co-defendants pleaded guilty. Petitioner's defense consistently has been that only these three men were involved in the crime. Some witnesses testified that they saw only three men at the site of the crime; but other witnesses stated that they saw four men. Furthermore, a bank teller identified the petitioner as the person who shot the murder victim. The petitioner was convicted, and his conviction was upheld by the Massachusetts Supreme Judicial Court. Commonwealth v. Subilosky, 352 Mass. 153, 224 N.E.2d 197 (1967).

Petitioner then began the process of seeking post-conviction remedies. His first line of attack focused on the admission at trial of four uncounselled prior convictions used to impeach his trial testimony. ¹ Without having raised this claim in the state Supreme Judicial Court and without having raised it in any state post-conviction procedures, he filed a habeas petition in federal court. After we dismissed his habeas petition for failure to exhaust state remedies, Subilosky v. Commonwealth, 412 F.2d 691 (1st Cir. 1969), the petitioner presented his claim to the state courts. The state Supreme Judicial Court held that the admission of the convictions was harmless error. Subilosky v. Commonwealth, 358 Mass. 390, 265 N.E.2d 80 (1970). The defendant then renewed his petition for a writ of habeas corpus and the district court agreed that the error was harmless. We affirmed, finding that the weight of the evidence of guilt was not affected by the insignificant addition of the uncounselled convictions, particularly when the petitioner had already testified that he had spent most of his life in prison. Subilosky v. Moore, 443 F.2d 334 (1st Cir. 1971).

Obviously unsatisfied with this result, petitioner filed a motion for a new trial in state court. The petitioner asserted that the motion should be granted because newly discovered evidence showed that he was innocent. The petitioner submitted four affidavits in support of his motion. The motion judge heard petitioner testify that he did not participate in the robbery. The judge then ruled that he would not accept the affidavits as evidence, but granted a three week continuance so that the petitioner could present live testimony from the affiants. Two of the affiants, including one of the petitioner's accomplices, testified at the hearing. The judge found that the evidence was neither newly discovered nor credible, and denied the motion for a new trial. This denial was affirmed on appeal. Commonwealth v. Subilosky, 6 Mass.App. 860, 374 N.E.2d 334, cert. denied, 439 U.S. 1050, 99 S.Ct. 729, 58 L.Ed.2d 710 (1978). The district court rejected essentially the same arguments in denying habeas corpus, which is the ruling we review.

We start, as did the district court, by noting that federal habeas relief is available only to review constitutional error. Salemme v. Ristaino, 587 F.2d 81, 87 (1st Cir. 1978). See 28 U.S.C. § 2254(a). Denial of a motion for a new trial based on newly discovered evidence may only be reviewed on habeas for "the presence of error of constitutional magnitude." Sawyer v. Mullaney, 510 F.2d 1220, 1221 (1st Cir. 1975). The district judge has a "wide degree of discretion" in ruling on the motion, and habeas will be "sparingly used." Id. Accord, Grace v. Butterworth, 586 F.2d 878, 881 (1st Cir. 1978). In Grace we said that "where defendants have received a full and fair factual review in the state courts, the federal courts, in habeas proceedings, will not engage in second guessing." Id. ²

Applying these principles to the particular facts of this case, we conclude that the motion judge did not commit an error of constitutional magnitude by denying the motion for a new trial. All affiants were known to the petitioner at the time of the trial, and were available as witnesses. The evidence consists of blanket denials of guilt together with impeachment of statements made at trial by, among others, petitioner and a now deceased witness. The motion judge ruled that this evidence was neither newly discovered nor credible. We not only fail to find constitutional error but we fail to detect any error whatsoever.

The petitioner also claims that the motion court violated his right to due process by failing to accept the affidavits into evidence. We have recently held that "(t)he writ of habeas corpus ordinarily will not lie solely to correct alleged errors in evidentiary rulings." Allen v. Snow, 635 F.2d 12, 15 (1st Cir. 1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1981, 68 L.Ed.2d 299 (1981). We continued, "(t)o rise to constitutional magnitude, such an error must 'so infuse the trial with inflammatory prejudice as to render a fair trial impossible.' " Id. (quoting Salemme v. Ristaino, 587 F.2d at 86). There surely was no constitutional error here. Petitioner was given three weeks to present live testimony to the court. Two of his affiants did not testify, and we are not informed of the reason for their absence. The court's preference for live testimony is understandable and in the...