Austin v. Vose ( 1998 )

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]



                 United States Court of Appeals

                     For the First Circuit











No. 98-1218



                        THOMAS H. AUSTIN,



                           Petitioner,



                                v.



                   GEORGE A. VOSE, JR., ET AL.,



                           Respondent.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



           [Hon. William G. Young, U.S. District Judge]







                              Before



                       Selya, Circuit Judge,

                Campbell, Senior Circuit Judge,

                   and Lynch, Circuit Judge.









     Thomas Austin on brief pro se.

     Scott Harshbarger, Attorney General, and Susanne g. Levsen,

Assistant Attorney General, on brief for appellees.











June 19, 1998













            Per Curiam.  Upon careful review of the briefs and

    record, we reach essentially the same conclusion reached by the

    district court.  In our de novo review, we have applied the

    standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637

    (1993), and we have considered the factors outlined in

    Levasseur v. Pepe, 70 F.3d 187, 193 (1st Cir. 1995).  Thus, we

    conclude that, although the videotape may have been used

    extensively at the trial, and the identification issue to which

    it pertained may have been the central question before the

    jury, still the properly admitted evidence against petitioner

    was so strong that, even assuming the videotape improperly was

    shown to the jury, habeas relief is not warranted.

              Affirmed.  See 1st Cir. Loc. R. 27.1.