residual marks. * * * The scrapings from the piano leg and fibers from the particular area, including those about the sofa in the region of the leg, was no human blood or no blood of any type, and all the fibers were not of human origin.' On the conspiracy trial the same witness testified that he found 'scrapings from the piano legs, fibers from that area, and fibers recovered in that area, scrapings, were negative for human blood. They were particularly the resin and varnish of the piano legs. They were the fibers that would come from that area during sweepings and vegetation that lies in and about the floor.' It is obvious that there is no substantial conflict in the testimony of this witness on these trials. Mr. Brady was also asked on the abortion trial whether, on July 30, 1956, when he took the scrapings from the piano leg, he examined anything else in the apartment and he answered 'At that particular time, no.' During the conspiracy trial, the same witness was asked whether he made some careful examinations of various parts of the defendant's apartment, including the bathroom. He responded to this inquiry in the affirmative but stated that he saw no blood on the toilet. Asked with respect to his examination of a mattress in the apartment, he denied making any careful examination thereof, but stated that he observed no gross bleeding upon it. No date was mentioned in connection with the examinations referred to in this testimony. The testimony of Detective Sergeant Ventimiglia that Mr. Brady, in his presence, examined the apartment, the bathroom and living room, the piano and piano leg, and generally observed conditions therein, is utterly barren of any basis for suspicion of perjury on the part of either of the named witnesses, much less of a foundation for petitioner's charge that the State knowingly introduced perjurous testimony violative of petitioner's constitutional rights.
The law which I deem applicable to the present pending petition for writ of habeas corpus is clearly and comprehensively restated by Judge Barnes of the Ninth Circuit, in Muhlenbroich v. Heinze, 1960, 281 F.2d 881, at page 883, as follows:
'It is clear that a federal district judge may dismiss a habeas corpus petition of a state prisoner without hearing when, as a matter of law, the facts alleged in the petition do not constitute grounds for relief in a federal court. Brown v. Allen, 1953, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469, * * *; 28 U.S.C. § 2243. However, when it is not possible to dispose of the petition on purely legal grounds, the court must determine 'by examination of the record whether or not a hearing would serve the ends of justice.' Brown v. Allen, supra, * * *, 344 U.S. at page 464, 23 S. Ct. at page 411. While in general a petitioner is entitled to a hearing when issues of fact must be resolved, Walker v. Johnston, 1941, 312 U.S. 275, 61 S. Ct. 574, 85 L. Ed. 830, this is not necessary when a state court has already adjudicated the factual issue adversely to the petitioner. In such cases a federal district judge may rely on state court adjudication of fact, and, in his discretion, direct his inquiry only to whether the state court adjudication is without vital flaw. Thomas v. State of Arizona, 1958, 356 U.S. 390, 78 S. Ct. 885, 2 L. Ed. 2d 863; Brown v. Allen, supra.'
Upon the petition before this Court, and the exhibits referred to therein, and submitted therewith, as well as upon the record of the prior related proceedings, I find, as a matter of law, that the facts alleged in the petition do not constitute grounds for the relief sought, and that a hearing thereon would not serve the ends of justice.
I further conclude that the State Court adjudications of fact are without vital flaw. The accusations of perjury and withholding of evidence have not been brought home to the prosecution of the criminal offenses, and the failure of the State to introduce into evidence the preserved uterus of the abortion victim (of which petitioner also complains) does not constitute a withholding of evidence prejudicial to him, since the article was in court during the abortion trial and available for introduction by the defendant had he chosen to make such use of it.
For the reasons stated, the petition for writ of habeas corpus is dismissed. It is accordingly so ordered this 24th day of February, 1961.
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