We are not charged with a review of the strategy of defense counsel. Burkett v. Mayo, 5 Cir., 173 F.2d 574; as to same, see Com. ex rel. Darcy v. Claudy, 367 Pa. 130, at page 133, 79 A.2d 785. The defendant is entitled to a fair trial, not a perfect one. His counsel is not required to be infallible. United States ex rel. Feeley v. Ragen, 7 Cir., 166 F.2d 976.
The rule in Pennsylvania is that '* * * no lawyer can be expected to do more than exercise a reasonable skill which cannot be fairly judged by the result of the trial alone.'
Com. v. Thompson, 367 Pa. 102, at page 109, 79 A.2d 401, 405. In federal courts the Constitution does not guarantee the assistance of the most brilliant counsel. United States ex rel. Mitchell v. Thompson, D.C., 56 F.Supp. 683, at page 688; Ex parte Smith, supra, 72 F.Supp. 935, 940; United States ex rel. Feeley v. Ragen, supra, 166 F.2d at page 980; cf. Von Moltke v. Gillies, supra, 332 U.S. at page 726, 68 S. Ct. 316.
Unquestionably, now that the record is made, able counsel can go over every question and perhaps frame a better one, may assign better reasons for objections taken, may suggest avenues of cross-examination which did not occur to him who actually faced the court and jury. So, too, military strategists go over the movements of lost battles and demonstrate how it might have been won.
Following the precepts of Johnson v. Zerbst, supra, 304 U.S. at page 465, 58 S. Ct. 1019; United States ex rel. Kennedy v. Burke, 3 Cir., 173 F.2d 544, we examined the facts looking through form and into the heart and substance of the petition, the record in the trial and appellate courts, including the transcript of the testimony of the trial proceeding.
We accept as true all of the well pleaded allegations of the petition, however much they may tax credulity,
except to the extent that they conflict with the record and the trial transcript itself. Walker v. Johnston, supra, 312 U.S. at page 284, 61 S. Ct. 574; Hill v. United States ex rel. Wampler, 298 U.S. 460, 464, 56 S. Ct. 760, 80 L. Ed. 1283; Riddle v. Dyche, 262 U.S. 333, 43 S. Ct. 555, 67 L. Ed. 1009; Bowen v. Johnston, 306 U.S. 19, at page 23, 59 S. Ct. 442, 83 L. Ed. 455.
'Facts of record with regard to what occurred at a trial cannot be attacked on habeas corpus.'
Williams v. Huff, 79 U.S.App.D.C. 31, 142 F.2d 91, at page 92; Id., 79 U.S.App.D.C. 326, 146 F.2d 867; Ex parte Whistler, D.C., 65 F.Supp. 40.
This is not a case of waiver of counsel but one where the precise question is spelled out in the record and the averment of the petition is in flat contradiction of what the record actually shows to have occurred.
As to the statements by jurors, 'Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.' McDonald v. Pless, 238 U.S. 264, at pages 267, 268, 35 S. Ct. 783, 784, 59 L. Ed. 1300.
'He who makes studied inquiries of jurors as to what occurred there acts at his peril, lest he he held as acting in obstruction of the administration of justice. Much of such conversation and inquiry may be idle curiosity, and harmless, but a searching or pointed examination of jurors in behalf of a party to a trial is to be emphatically condemned. It is incumbent upon the courts to protect jurors from it.' Rakes v. United States, 4 Cir., 169 F.2d 739, at pages 745, 746.
As to Pennsylvania, see observations in Com. ex rel. Darcy v. Claudy, supra, 367 Pa. 130, 79 A.2d 785.
Since it appears that petitioner is not entitled to a writ and that this petition is without merit (28 U.S.C.A. § 2243; Walker v. Johnston, 312 U.S. 275, 284, 61 S. Ct. 574, 85 L. Ed. 2d 830; Ex parte Quirin, 317 U.S. 1, 24, 63 S. Ct. 1, 87 L. Ed. 3) we have no alternative but to dismiss.