Before McLAUGHLIN and GANEY, Circuit Judges, and COHEN, District Judge.
In 1957 appellant was convicted in a court of the Commonwealth of Pennsylvania for Aggravated Assault and Battery. He was sentenced on this to a term of not less than one year or more than three years. Later that year in the state court he was convicted on charges of violating the Narcotics Act of Pennsylvania. He was found guilty on all four counts of that indictment. He was sentenced to a term of from five to ten years on each count to run concurrently with the others and with the sentence appellant was then serving on his aggravated assault and battery conviction. Those sentences were to be served at the Allegheny County Workhouse.
In the narcotics conviction appellant moved for a new trial. The court stenographer had become ill meanwhile and was unable to transcribe his notes. He died some time after that and his notes could not be read. The state trial judge heard the motion for a new trial. As he stated in his opinion denying the motion, he had a clear recollection of the trial plus his own copious notes. Appellant took an appeal to the Superior Court on the sole ground of lack of transcript. The Superior Court affirmed, 187 Pa.Super. 490, 144 A.2d 598 (1958).
Kimble then petitioned the state court for a writ of habeas corpus. That was denied and he appealed to the Superior Court. There he contended that he had been wrongfully sentenced in the narcotics conviction as a second offender and so had received an excessive sentence. He alleged that he had been convicted under the narcotics indictment because of the perjury of witness Harry Tabb who had since repudiated his testimony. He repeated his contention that the narcotics conviction should be set aside because the trial transcript was unavailable to him. He set out some other charges which he had not presented below and which were dismissed for that reason. The lower court's denial of the writ was affirmed in 194 Pa.Super. 169, 166 A.2d 668 (1960). In that opinion the Superior Court made it very clear that Kimble had not been sentenced as a second offender and that the term given him was in exact accordance with Pa.Stat.Ann. tit. 35, § 865 (1955) (since amended as Pa.Stat. Ann. tit. 35, § 780-20 (1962)) which fixed the term of imprisonment for the narcotic offenses of which Kimble had been found guilty as "* * * not exceeding ten years". The charge concerning Tabb was passed upon and held as insufficient for the allowance of the writ. The situation as to the lack of trial transcript had already been disposed of on its merits by the same court as already mentioned.
Kimble took the matter to the Pennsylvania Supreme Court which denied allocatur, then to the United States Supreme Court where certiorari was denied. Following that he petitioned the United States District Court for a writ of habeas corpus. His grounds, inter alia, were that the narcotics indictment was invalid; that Tabb's statement was read to the jury; that he had been arrested without legal warrant and that there had been a delay in the preliminary hearing; that the trial court had lost jurisdiction by failing to indict any of the "co-defendants"; that there had been improper conduct by the police and by the judge. These charges were not made in the state proceedings and were properly not considered by the district judge. This left two points for consideration, the lack of transcript and the question of Tabb's recantation.
With reference to the Tabb allegation, the District Judge ordered an investigatory hearing which was held on April 3, 1962. Tabb as a witness reaffirmed the testimony he had given at Kimble's trial. He said that the affidavit which he had later given Kimble which asserted that his trial testimony was false, was in fact, untrue. The District Judge in his opinion stated:
"This Court had the opportunity to observe the demeanor, character, and the manner in which Harry Tabb testified, and it is this observation of the witness by a district judge in his own courtroom in an open forum which is the best way in which a trier-of-fact can learn the truth of the matter involved. I am satisfied that the testimony that Mr. Tabb gave before me was truthful, and there is no basis to the allegations made by petitioner."
The Court also heard the evidence of two detectives whom Kimble had accused of shaking him down and attempting to frame him and commented:
In addition, this Court had the opportunity to hear the testimony of Detectives Van Leer and Butzler. This Court is satisfied after hearing their testimony that there was no shakedown or attempts to frame Mr. Kimble by these detectives, and that their testimony was true."
The thoroughly experienced District Judge gave Kimble's allegations his full attention. His course of action as outlined in his opinion shows how carefully and conscientiously he handled the entire proceeding.*fn1
In this court the only issues properly before us are those dealing with the witness Tabb and the absence of the trial transcript.
Concerning the Tabb evidence the Pennsylvania Superior Court held in Kimble's state habeas corpus appeal, 194 Pa.Super. 169, 173, 166 A.2d 668, 670 (1960):
"It has been repeatedly held that 'an attack on the evidence presented at the trial, based on an averment that it was perjured, cannot be a subject of habeas corpus'. Com. ex. rel. Cobb v. Burke, 1954, 176 Pa.Super. 60, 63, 107 A.2d 207, 209. 'Affidavits made by Commonwealth witnesses recanting their testimony given at trial are exceedingly unreliable, and it is the court's duty to deny relief where it is not satisfied that the recantation is true, especially where it involves an admission of perjury.' Com. ex. rel. Estelle v. Cavell, 1959, 191 Pa.Super. 200, 205, 156 A.2d 615, 618."
Since that time, Tabb on the witness stand in the district court reaffirmed his trial evidence. We are satisfied that the District Judge in refusing to grant the writ on this ground acted justifiably. The facts of the relationship between Kimble and Tabb as developed at the trial and detailed in the ...