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February 3, 1982

UNITED STATES of America ex rel. John SULLIVAN, Petitioner,
Julius T. CUYLER, Superintendent, State Correctional Institution, Graterford, Pennsylvania, and The District Attorney of Philadelphia County, Respondent

The opinion of the court was delivered by: DAVIS

By ORDER on March 17, 1981 this court granted respondent's motion to proceed with this petition for habeas corpus upon the state court record. Accordingly, the court cancelled the evidentiary hearing which was originally scheduled for November 20, 1980. *fn1" After yet another review of the extensive state court record in this case in order to assess the merits of petitioner's claims, I find it necessary to reconsider my prior ruling sua sponte. The sole issue before the court is whether an evidentiary hearing must be held in order to address the merits of petitioner's constitutional challenge to his murder conviction in state court. *fn2"

The procedural history of this case is exhaustively set forth in the prior opinions of the Supreme Court, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333, *fn3" and the Third Circuit Court of Appeals, 593 F.2d 512, 631 F.2d 14. *fn4" Only several lower court rulings, however, are relevant to the inquiry now before the court.

 After his conviction was affirmed by the Pennsylvania Supreme Court, *fn5" the petitioner sought collateral relief under the Pennsylvania Post Conviction Hearing Act (P.C.H.A.). *fn6" Five days of hearings were held by learned Judge Doty; Sullivan, Carchidi, Peruto, Judge DiBona, and the trial judge, as well as several other witnesses testified. The testimony presented at the hearing was inherently conflicting. *fn7"

 Upon consideration of the petition, the P.C.H.A. court, per Doty, J., held that Sullivan could take a second direct appeal because counsel had not adequately assisted him in his first appeal. *fn8" On appeal, the Pennsylvania Supreme Court, once again, affirmed petitioner's original conviction and the denial of collateral relief. *fn9" In assessing the merits of the conflict of interest claim, the court concluded that there was "no dual representation in the true sense of the term," since Judge DiBona served as chief trial counsel. *fn10" Relying on Judge DiBona's testimony that his stewardship was unaffected by considerations of the co-defendants' cases, the court summarily found no basis for the claim that counsel at trial were ineffective. *fn11"

 Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963) sets forth the criteria for determining when a federal habeas court may adopt the factual findings of a state court without conducting an evidentiary hearing. *fn13" Harris v. Oliver, 645 F.2d 327, 330 (5th Cir. 1981); Montes v. Jenkins, 581 F.2d 609, 611 (7th Cir. 1978). The ninth circuit eloquently stated; "(T)he existence of a full and fair hearing on constitutional claims under federal standards is the keystone of the undeniable wall protecting the finality of a prior state habeas adjudication. In its absence, that wall crumbles." Silverton v. Department of Treasury, etc., 644 F.2d 1341, 1346 (9th Cir. 1981). Defining the nature of a full and fair hearing, the court in Townsend elaborated stating:

We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing: (2) the state factual determination is not fairly supported by the record as a whole: (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing: (4) there is a substantial allegation of newly discovered evidence: (5) the material facts were not adequately developed at the state-court hearing: or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.

 Townsend v. Sain, 372 U.S. at 313, 83 S. Ct. at 757. It is not necessary to embark upon an extended trek through each category, since the first provides ample guidance for resolution of the issue at bar on the record before the court.

 The presumption of correctness in ยง 2254(d) presupposes reliable fact-finding by the state court. "(A) federal evidentiary hearing is required unless the state-court trier of fact has, after a full hearing, reliably found the relevant facts." Id. at 312-13, 83 S. Ct. at 356 (footnote omitted); LaVallee v. Delle Rose, 410 U.S. 690, 692, 93 S. Ct. 1203, 1204, 35 L. Ed. 2d 637 (1973). *fn14" The relevant factual findings which are entitled to deference are those "basic, primary or historical facts "in the sense of a recital of external events and the credibility of their narrators...'." Townsend v. Sain, supra, 372 U.S. at 309 n.6, 83 S. Ct. at 755 n.6 (quoting Brown v. Allen, 344 U.S. 443, 506, 73 S. Ct. 397, 445, 97 L. Ed. 469 (1953)). *fn15" In sum, deference to state court findings is permissible only when the state tribunal has actually resolved disputed issues of fact in deciding the merits of the constitutional claim tendered by the petitioner.

 Further defining the nature of adequate resolution of disputed facts as set forth in the first Townsend criteria the court stated:

There cannot even be the semblance of a full and fair hearing unless the state court actually reached and decided the issues of fact tendered by the defendant. Thus, if no express findings of fact have been made by the state court, the District Court must initially determine whether the state court has impliedly found material facts. No relevant findings have been made unless the state court decided the constitutional claim tendered by the defendant on the merits.... If the state court has decided the merits of the claim but has made no express findings, it may still be possible for the District Court to reconstruct the findings of the state trier of fact, either because his view of the facts is plain from his opinion or because of other indicia. In some cases this will be impossible, and the Federal District Court will be compelled to hold a hearing.
Reconstruction is not possible if it is unclear whether the state finder applied correct constitutional standards in disposing of the claim. Under such circumstances the District Court cannot ascertain whether the state court found the law or the facts adversely to the petitioner's contentions. Since the decision of the state trier of fact may rest upon an error of law ...

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