Stewart v. DiPaolo ( 2003 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2085
FRANCIS STEWART,
Petitioner, Appellant,
v.
PAUL DIPAOLO,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Campbell and Stahl, Senior Circuit Judges,
and Lynch, Circuit Judge.
Francis Stewart on brief pro se.
Natalie S. Monroe, Assistant Attorney General, Criminal
Bureau, Thomas F. Reilly, Attorney General, on brief for appellee.
July 15, 2003
Per Curiam. After a thorough review of the record and of
the parties' submissions, we affirm.
The Massachusetts Supreme Judicial Court ("SJC") found
that Stewart's 1960 firearms conviction would have been admissible
had Stewart taken the stand. Petitioner Francis Stewart
("Stewart") argues this conclusion was based on an erroneous
factual premise: that he was represented by counsel during the
1960 proceeding. In a federal habeas action, the factual findings
of the state court are presumed correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1). The 1960 docket sheet shows
Stewart did receive appointed counsel. Stewart claims otherwise,
but his assertion, standing alone, is insufficient to meet the
clear and convincing evidence standard.
As for the admissibility of the misdemeanor conviction
for operating a motor vehicle under the influence, we agree with
the state appellate court's assessment that admission of the
evidence would have been harmless beyond a reasonable doubt under
the standard in Chapman v. California, 386 U.S. 18 (1967), given
that evidence of four prior felony convictions also would have been
available to impeach Stewart. As the trial court planned to admit
the evidence in the event Stewart testified, it was clear Stewart
only could prevent admission of the evidence by choosing not to
testify. Thus, his attorney's advice to this effect was correct.
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Ultimately, then, the advice Stewart received in the
course of deciding whether to testify was correct. His ultimate
waiver of his right to testify was knowingly made and was valid.
Appellee's motion to strike is denied.
Affirmed. See 1st Cir. Loc. R. 27(c).
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