accent, as a contradiction to the description of Lois Stiles' attacker as having a Spanish accent.
But should not this evidence under discussion properly be considered as new or additional evidence -- rather than suppressed evidence. As such, it has already been examined by the New Jersey Supreme Court, which concluded that the non-introduction of such evidence at the trial had not been prejudicial to petitioner. The court there said, in State v. Landeros, 1955, 20 N.J. 76, 84, 118 A.2d 524, 529:
'Counsel for the defense and the prosecutor of the pleas, evincing firm faith in their respective beliefs, in a rather unusual procedure consented to our going outside of the record in an effort to find further light by examining documentary material which was subsequently offered as having some bearing upon certain disputed questions of fact relating to the issues presented to the jury. This material, although helpful, had no persuasive significance in our ultimate determination.' (Emphasis supplied.)
It was observed earlier that a United States District Court, when petitioned for a writ of habeas corpus, cannot undertake the review of disputed factual questions already tried in the state courts. As the Supreme Court of California stated in Ex parte Horowitz, 1949, 33 Cal.2d 534, 203 P.2d 513, 521:
'Petitioner undoubtedly has established that at the trial there were disputed issues of fact and grave conflicts in the evidence. But the existence of such issues and conflicts at the trial, or the discovery of new evidence pertinent to them, presents no ground for intervention by us on habeas corpus.' (Emphasis supplied.)
The sole matter at hand, therefore, is whether there has been a denial of due process prejudicial to petitioner, for which a writ of habeas corpus should be granted.
Petitioner, after having had the opportunity of examining all the material now available on both sides of the case is, in effect, now spot-lighting the prosecution's real or apparent weak points, while emphasizing his own strength. Petitioner is in effect arguing that on a second go-round, he would do much better. Perhaps so. But he has not sustained his contention that his constitutional rights were denied, though he included both a probation and psychiatric report made after the trial.
Both reports are totally extraneous to the constitutional questions raised in this case. Nor do they contain any material which in themselves point to a miscarriage of justice. Petitioner draws encouragement from the 'psychiatric evaluation' of an examination made on November 15, 1954 which concludes as follows (p. 34a of petitioner's Supplemental Appendix):
'The interview fails to reveal any signs of psychotic or highly psychopathic behavior and in this respect confirms the previous findings of Dr. Boutelle who examined the man approximately one year ago. The psychiatric findings at this time are insufficient to point to a personality with compulsive and pathological sex trends, notwithstanding the fact that the crimes themselves would point to such a type of personality. In view of this, the examiners feel that he would be treated as a correctional case and committed to a penal institution.'
Obviously, this report, too, failed to influence the New Jersey Supreme Court, as noted earlier. And for the purposes of this petition, it is completely unacceptable.
The main thrust of petitioner's assertions of denial of his constitutional rights is directed to the proposition that his conviction was based on a combination of testimony known by the prosecution to be false and suppressed evidence, and failure by the New Jersey Supreme Court to order a new trial because of such suppression.
Petitioner has cited Pyle v. Kansas, 1942, 317 U.S. 213, 63 S. Ct. 177, 87 L. Ed. 214; Mooney v. Holahan, 1935, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791; Chessman v. Teets, 1955, 350 U.S. 3, 76 S. Ct. 34, 100 L. Ed. 4; and United States ex rel. Montgomery v. Ragen, D.C.N.D.Ill., E.D.1949, 86 F.Supp. 382, as supporting his position. Pyle, Mooney, and Chessman, supra, each charged denial of constitutional rights because of either fraud, suppression of evidence, or perjured testimony. When such charges are proved on their merits, they, of course, constitute a denial of constitutional rights. However, Pyle, Mooney, and Chessman stand for the common proposition that when allegations are made of a denial of due process in violation of the Federal Constitution, such allegations must be met on the merits and not be summarily dismissed.
The Ragen case, supra, which petitioner describes as 'strikingly similar in many respects' is similar only in the fact that the defendant in each case was a colored man accused of raping a white woman. In Ragen, the prosecution had in its files incontestible medical evidence showing that the victim of the alleged rape had in fact not been raped, and that, indeed, she was still a virgin. Yet, it proceeded to prosecute without making this evidence available to the defense. No further comparison is necessary to instant case.
There were discrepancies in records, statements, and testimony in the instant case, but they were no more than the inaccuracies that often creep into the recollection of witnesses. They do not rise to the level that the petitioner charges, namely, that the prosecution knowingly interjected false testimony in the case against him.
I am convinced that the so-called 'suppressed' evidence was not, in fact, suppressed or made deliberately unavailable in the sense suggested by petitioner. Indeed, a study of the record of this case points to no reluctance by the prosecution to bring the disputed evidence into open testimony in court, and eventually, before the Supreme Court of New Jersey. Conversely, nowhere in the record is there any indication that petitioner sought to examine police reports pertaining to himself, nor request to see reports or statements made by witnesses called by the prosecution.
Viewing all the matters relevant to the case at bar, I am constrained to conclude that petitioner was not denied any of his constitutional rights.
Hence, It Is on this 29th day of June, 1957, Ordered that the order to show cause should be discharged and that the application of Albert Herman Landeros for a writ of habeas corpus be and the same is hereby denied.