United States Court of Appeals
For the First Circuit
No. 05-2587
SETH BADER,
Petitioner, Appellant,
v.
WARDEN, NEW HAMPSHIRE STATE PRISON,
Respondent, Appellee.
ERRATA
The opinion of this court issued on May 25, 2007, should be
amended as follows:
On page 8, lines 9-12, change the first sentence to read: "In
federal habeas proceedings directed to state prisoners, the federal
statute provides that findings by the state court are entitled to
substantial deference. 28 U.S.C. § 2254(d)(2), (e)(1) (2000)."
Following this sentence, a footnote should be added with the
following text:
Bader argues that we need not pay any deference to the
state court's factual finding that no leniency-for-
testimony agreement existed because that finding was not
rendered in the context of an evidentiary hearing. See,
e.g., Bryan v. Mullin, 335 F.3d 1207, 1216 (10th Cir.
2003), cert. denied, 541 U.S. 975 (2004). Bryan's no-
deference rationale is inconsistent with the plain
language of sections 2254(d) and (e), which require our
deference to all state court factfinding which is not
"unreasonable." See Lambert v. Blackwell, 387 F.3d 210,
239 (3d Cir. 2004).
On page 11, lines 1-6, change the first two sentences to read:
"In all events, Seth does not have sufficient evidence of an actual
agreement, made between the prosecutors and defense counsel, by
which Joseph would testify in exchange for leniency. Absent
evidence that, if accepted, could overcome the deference due to the
state-court finding, there is nothing to be tried in an evidentiary
hearing."
On page 12, lines 25-27, replace the final sentence on the
page with "This was hardly evidence that the state finding was
wrong."