hear them fully examined and cross-examined. In light of all of the other evidence before the state judge, this court simply cannot conclude that this report would have made a sufficient difference to satisfy either Brady or § 2254(d).
Similarly, the court believes that the hearsay evidence of Investigator D'Andrea was not sufficiently material to allow this court to ignore the state court finding. D'Andrea, who was not involved in the Landano investigation, stated that a manila folder in the Landano file, which contained a photo array including a photograph of Forni, was shown to "a truck driver" during the investigation. This evidence is not material for two reasons. First, there is no evidence that Portas selected a photo from this array. More importantly, however, the evidence is very weak hearsay, and therefore not sufficiently reliable to support a different outcome than the one reached by the state court.
Finally, the fact that the two photographs missing from photo array S-2 have apparently been found in photo array S-1 does nothing more than establish the location of the missing photographs. The fact that they were missing was before the state court. Their discovery is therefore not likely to have caused the state court to alter its finding as to Portas' credibility.
This court must therefore conclude that it is without authority under 28 U.S.C. § 2254(d) to strip the state court finding of its presumptive correctness. Although petitioner has pointed to some evidence that the state court did not have before it, petitioner has not persuaded the court that that evidence would or was likely to have affected the decision of the state court, or that the absence of that evidence prevented the state hearing from fully, fairly, and adequately developing the credibility of Portas' recantation.
B. The Court's Power Independent of § 2254(d)
Petitioner, relying on Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), argues that the court enjoys plenary power to make and give effect to fact findings without regard to 28 U.S.C. § 2254(d). Petitioner cites a number of authorities for the proposition that the intent of Congress in enacting 28 U.S.C. § 2254(d) was not to eviscerate Townsend, but to leave it intact and supplement it. See, e.g., Thomas v. Zant, 697 F.2d 977 (11th Cir. 1983), cert. denied, 481 U.S. 1041, 107 S. Ct. 1982, 95 L. Ed. 2d 822 (1987); P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 1505 n.7 (2d ed. 1973). From this premise, petitioner concludes that the court, having decided to hold an evidentiary hearing, had the power to give effect to its own findings of fact without first concluding that the state proceeding was defective in one of the ways enumerated in § 2254(d).
Petitioner's premise is accurate, but his conclusion is faulty. The Townsend Court was quite explicit in its purpose: "The purpose of the test is to indicate the situations in which the holding of an evidentiary hearing is mandatory." 372 U.S. at 318. In other words, Townsend lists the situations in which a federal district court must hold an evidentiary hearing on a habeas application. Townsend left open the question of when a district court may hold an evidentiary hearing in situations other than those in which hearings are mandatory: "In all other cases where the material facts are in dispute, the holding of such a hearing is in the discretion of the district judge." Townsend, 372 U.S. at 318. It is the role of 28 U.S.C. § 2254(d) to establish the burden of proof at hearings which are discretionary under Townsend.
Therefore, had this court's September 2, 1987 evidentiary hearing been mandatory under Townsend, petitioner could argue forcefully that the court would be freed of any obligation of deference to the state court's findings.
This court, however, exercised its discretion in holding that hearing. Therefore, the court had no authority, other than that which is delegated in the eight subdivisions of 28 U.S.C. § 2254(d), to strip the state court findings of their presumption of correctness.
The court has carefully reviewed the arguments petitioner has pressed in his motion for reconsideration. Absent a finding that the new evidence presented to this court was material and the failure to present it to the state court was prejudicial, this court continues to conclude that it must heed the Congressional mandate, and in turn, defer to the state court findings.
The court does so with no less anguish on this second occasion.