Carl Velleca v. Superintendent, M.C.I., Walpole, 523 F.2d 1040, 1st Cir. (1975)

523 F.
2d 1040
Carl VELLECA, Petitioner-Appellant,

v.
SUPERINTENDENT, M.C.I., WALPOLE, RespondentAppellee.
No. 73-1239.
United States Court of Appeals,

First Circuit.
Submitted Sept. 12, 1975.
Decided Oct. 16, 1975.
Joel R. Labell, Lawrence, Mass., by appointment of the Court, on brief for

appellant.
Francis X. Bellotti, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief,
Crim. Bureau, and Barbara A. H. Smith, Asst. Atty. Gen., on brief for
appellee.
Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit
Judges.
PER CURIAM.
Petitioner-appellant, an inmate of the Massachusetts Correctional Institution,

Walpole, appeals from the district court's reaffirmance of its prior denial of a
writ of habeas corpus. We affirm.
Appellant and two codefendants were convicted of armed robbery while

masked and breaking and entering in the nighttime with intent to commit a
felony. Their convictions were affirmed by the Supreme Judicial Court of
Massachusetts in an extensive opinion that examined in detail all of petitionerappellant's assignments of error. Commonwealth v. Flynn et al., Mass., 287
N.E.2d 420, 427-33, 435-38 (1972). When appellant first petitioned for a writ
of habeas corpus, a hearing was held before a United States Magistrate who
filed a report on May 24, 1973, recommending dismissal. The magistrate heard
no witnesses, nor did he undertake to resolve disputed factual issues. On May
26, 1973, the district court dismissed the habeas petition on the merits.1
Petitioner then filed notice of appeal. After disposition of interim motions to
consolidate with a companion case, this court issued an order granting leave to
the district court "to entertain and act on a motion for a full evidentiary hearing"
and retained appellate jurisdiction. We were not fully aware of the limited, nonevidentiary nature of the magistrate's hearing, and in any event felt it prudent to
allow the district court to verify that its decision rested altogether upon its own
independent judgment, not upon a magistrate's assessment. O'Shea v. United
States, 491 F.2d 774, 778 (1st Cir. 1974); See Wingo v. Wedding, 418 U.S.
461, 473, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974).
3
After reconsidering, pursuant to our order, appellant's motion for an evidentiary

hearing on his petition for a writ of habeas corpus, the district court reaffirmed
its previous dismissal. Appellant contends this was improper. The essence of
his claim is that since the magistrate's initial report recommended dismissal,
the district court could not fulfill its obligation to exercise independent
judgment unless it held an evidentiary hearing. However, this claim must fail.
There was no reason for the judge to hold an evidentiary hearing in this case as
there was no evidence to be taken. The existence of the magistrate's prior
recommendation to deny appellant habeas corpus relief does not preclude the
district judge from making an independent assessment. Our concern for
maintaining the district judge in the central decision-making role does not lead
us to hold that a magistrate may never include a recommendation in his report.
"In connection with the preliminary review of whether or not to propose that
the District Judge hold an evidentiary hearing, . . . Magistrates may receive the
state court record and all affidavits, stipulations and other documents . . . .
Magistrates are prohibited only from conducting the actual evidentiary
hearings." Wingo v. Wedding, supra at 473, 94 S.Ct. at 2849.
Petitioner-appellant also raises on appeal the fact that the district court did not
have available the trial transcript from the state court. We note that the absence
of the record of state court proceedings might be troublesome in certain cases.
This lack would generally affect the ability of the district court to make an
independent assessment of whether the "state factual determinations (are) . . .
fairly supported by the record," Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct.
745, 758, 9 L.Ed.2d 770 (1963). However, under the circumstances of the
present case, 28 U.S.C. 2254(d) and the principles of Townsend Would
appear to permit the federal district court to rely on the state court opinion in
lieu of holding its own hearing. The extensive opinion of the Supreme Judicial
Court of Massachusetts covering all of appellant's assignments of error clearly
places this case among those where "the state court proceedings were full and
fair" and the federal habeas court need not hold its own hearing. Farmer v.
Caldwell, 476 F.2d 22, 24 (5th Cir.),2 Cert. denied, 414 U.S. 868, 94 S.Ct. 178,
38 L.Ed.2d 117 (1973). While 2254(d) does not require a district court to
accept as true a state appellate court's factual statements, Thomas v. Craven,
473 F.2d 1235, 1236 (9th Cir. 1973), nevertheless the statute does establish a
presumption that the determinations made by a state court are correct unless a
petitioner can establish or it shall appear that the "merits of the factual dispute
were not resolved in the State court." 28 U.S.C. 2254(d)(1). Further, the
Supreme Court has recently held that there are certain cases where "it can
scarcely be doubted from (the state court's) written opinion that (a petitioner's)
factual contentions were resolved against him" and where "the opinion of the
state . . . court met the requirements of 28 U.S.C. 2254(d)(1)." LaVallee v.
Delle Rose, 410 U.S. 690, 692, 695, 93 S.Ct. 1203, 1204, 35 L.Ed.2d 637
(1973). Appellant's case clearly falls within this class. The opinion of the
Supreme Judicial Court amply considered his claims of procedural irregularities
and his claim of a due process violation as a result of his being shackled during
trial. Specifically, with regard to the trial court's exercise of discretion in
shackling appellant, the opinion indicated that the Supreme Judicial Court had
a "fair knowledge and understanding of all the factual matters on which the
decision (was) based"; that the "trial court was advised by officers in position to
know the facts", Kennedy v. Cardwell, 487 F.2d 101, 110-11 (6th Cir. 1973);
and that there was no abuse of discretion.
5
Affirmed.
As to claim three (right to interview in the absence of the prosecutor) the

district court dismissed the petition without prejudice for failure to exhaust
available state remedies
The panel consisted of Simpson and Clark, JJ. and Aldrich, Senior Circuit
Judge, sitting by designation

Carl Velleca v. Superintendent, M.C.I., Walpole, 523 F.2d 1040, 1st Cir. (1975)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Carl Velleca v. Superintendent, M.C.I., Walpole, 523 F.2d 1040, 1st Cir. (1975)

Uploaded by

Copyright:

Available Formats

523 F.

Carl VELLECA, Petitioner-Appellant,

United States Court of Appeals,

Joel R. Labell, Lawrence, Mass., by appointment of the Court, on brief for

Petitioner-appellant, an inmate of the Massachusetts Correctional Institution,

Appellant and two codefendants were convicted of armed robbery while

After reconsidering, pursuant to our order, appellant's motion for an evidentiary

As to claim three (right to interview in the absence of the prosecutor) the

You might also like