(concurring).
I concur in the judgment of affirmance, though I am not prepared to join in all that is said in the opinion by Judge Woodbury.
Petitioner is being held by respondent, warden of the State Penitentiary, to serve a life sentence pursuant to a judgment of conviction for murder in the second degree. His basic claim, it seems to me, is that the judgment of conviction was obtained in violation of his constitutional right to a fair trial, in that at the trial the prosecuting attorney knowingly made use of perjured testimony of a material witness as part of the state’s case. It is well settled that such unscrupulous conduct by the prosecution is a denial of due process of law. Mooney v. Holohan, 1935, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791; Hysler v. Florida, 1942, 315 U.S. 411, 413, 316 U.S. 642, 62 S.Ct. 688, 86 L.Ed. 932; Pyle v. Kansas, 1942, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214; White v. Ragen, 1945, 324 U.S. 760, 764, 65 S.Ct. 978, 89 L.Ed. 1348. Though the cases do not focus specifically on the point, I take it that such a constitutional claim is not to be defeated merely because there may have been other evidence, untainted, sufficient to warrant a conviction; that the burden is not on the petitioner to show a probability that in the jury’s deliberations the perjured evidence tipped the scales in favor of conviction. If the prosecutor is not content to rely on the untainted evidence, and chooses to “button up” the case by the known use of perjured testimony, an ensuing conviction cannot stand, and there is no occasion to speculate upon what the jury would have done without the perjured testimony before it.
Here Coggins, in filing his motions for a new trial on the ground of newly discovered evidence, availed himself of corrective process afforded by the state, by which he might have obtained relief from the judgment of conviction which he claimed to be constitutionally invalid. But assuming for the moment that the prosecution did in fact knowingly make use of perjured testimony at the trial, we would on that assumption have a case where the state’s corrective process, however fairly and reasonably conceived, and however *140fairly administered, failed to correct the constitutional error inherent in the judgment of conviction. Since the rules of res judicata are not in all strictness applied in habeas corpus cases,2 then it may be asked why petitioner, in his present application to the court below for a writ of habeas corpus, should not have been afforded an opportunity to prove the allegation of his petition that his conviction was based upon the known use of perjured testimony.
In this connection I have difficulty with some of the language, though not the holding, in Schechtman v. Foster, 2 Cir., 1949, 172 F.2d 339, a case quite similar to the one at bar. In the Schechtman case, the available corrective process was a petition to the trial court for a writ, coram nobis. The petitioner had invoked this remedy on the ground that his conviction had been obtained upon perjured testimony in violation of his constitutional rights; and after denial of relief in the state courts he filed a petition for habeas corpus in a federal district court. In affirming an order, dismissing the petition without a hearing, the court of appeals said, 172 F.2d at page 341: “If the [state] judge who denied that petition [for a writ coram nobis~\ did in fact consider the evidence as a whole, and if he decided that it was not, even prima facie, sufficient to make out a case of deliberate presentation by the prosecution of perjured testimony, Schechtman was accorded the full measure of his constitutional rights. It must be remembered that upon habeas corpus a federal court does not in any sense review the decision in the state courts. Here, for example, the District Court could not properly have issued the writ, no matter how erroneous the judge had thought the state judge’s conclusion that the evidence did not make out a prima facie case of the deliberate use of perjured testimony. The writ was limited to the assertion of the relator’s rights under the Fourteenth Amendment; and due process of law does not mean infallible process of law. If the state courts have honestly applied the pertinent doctrines to the best of their ability, they have accorded to an accused his constitutional rights.”
Where a person has been convicted on a trial satisfying in full the requirements of due process of law, he will not be allowed to attack the judgment of conviction collaterally by a petition for habeas corpus alleging that he was in fact innocent and erroneously convicted, even that particular testimony against him was false or perjured (so long as this was not with the knowledge or connivance of the prosecution). In that sense “due process of law does not mean infallible process of law”; the convicted person cannot use a writ of habeas corpus to obtain a trial de novo on the issue of his guilt. But such is not this case, nor was it the Schechtman case. No amount of due process subsequent to a judgment of conviction, if it fails to give relief against a constitutional error occurring at the trial, can wash away the fact, if it be a fact,, that the petitioner’s conviction was obtained in denial of his constitutional rights.
Therefore it seems to me that the court below in a broad sense had “jurisdiction” on the petition for habeas corpus to inquire into the truth of petitioner’s allegation that the prosecution made known use of perjured testimony at the trial. But it does not necessarily follow that the case is an appropriate one for the exercise of this power, or more precisely, as the question comes to us on this appeal, that the denial of the writ here without a hearing is reversible on the ground of abuse of discretion. Cf. In re Lincoln, 1906, 202 U.S. 178, 180, 26 S.Ct. 602, 50 L.Ed. 984. In United States ex rel. Kennedy v. Tyler, 1925, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138, the Court said:' “The rule has been firmly established by repeated decisions of this court that the power conferred on a federal court to issue a writ of habeas corpus to inquire into the cause of the detention of any person asserting that he is being held in custody by the authority of a state court in *141violation of the Constitution, laws, or treaties of the United States, is not unqualified, but is to be exerted in the exercise of a sound discretion. The due and orderly administration of justice in a state court is not to be thus interfered with save in rare cases where exceptional circumstances of peculiar urgency are shown to exist.”
I have examined the transcript of the full hearings on the two motions by Cog-gins for a new trial; they are on file in the Supreme Judicial Court and were before that court on the appeal. At both the hearings, as well as at the trial, Coggins was represented by experienced counsel.
Petitioner’s first motion for a new trial did not raise any constitutional question. One Theresa Rutina, a state’s witness at the trial, had testified to a certain incriminating admission made by Coggins during a conversation she had with him at the jail. In support of his motion, Coggins submitted an affidavit by Theresa Rutina, executed May 12, 1948, affirming that her testimony against him was untrue, and that it had been motivated by “intense feelings of jealousy” she felt toward Miss Doris Faulkner who had supplanted her in Cog-gins’ affections. The affidavit contained no affirmation that the perjured testimony was instigated by the prosecutor, nor even that he was aware of its falsity. Coggins “cannot, of course, contend that mere recantation of testimony is in itself ground for invoking the Due Process Clause against a conviction.” Hysler v. Florida, 1942, 315 U.S. 411, 413, 62 S.Ct. 688, 690, 86 L.Ed. 932. Nor, under the Massachusetts decisions, does the mere recantation of testimony by a government witness require the setting aside of a verdict and the granting of a new trial. Thus in Commonwealth v. Gwizdoski, 1933, 284 Mass. 578, 581, 188 N.E. 383, 384, the court said: “After Dombzalski had recanted, it was the duty of the judge, on a motion for a new trial, to give grave consideration to the question whether his testimony at the trial was worthy of credit. But it cannot be said that as matter of law the judge was required to grant a new trial. A judge is not bound to believe an affidavit. * * * Justice would not be served by a rule of law that a verdict must go for naught whenever a necessary witness can be induced, or for some reason decides, to repudiate his sworn testimony.”
During the course of the hearing on this first motion for a new trial, Judge Pinanski expressed himself as concerned with the truth of Rutina’s affidavit that she had testified falsely at the trial; and “more important than anything else” he was concerned with “whether her testimony at this trial was of such importance that it affected the defendant, otherwise he would not have been affected.” The Assistant District Attorney took his cue from this remark and in his argument minimized the importance of Rutina’s testimony as being “only a small drop in the bucket”, asserting that “without the testimony of Theresa Rutina there was overwhelming evidence of the guilt of Michael Coggins”. But it is important to note that this took place at the hearing on the first motion, which presented no federal constitutional question. At that stage, even assuming that Rutina had testified falsely at the trial, it was relevant for the judge, in the exercise of his discretion in granting or denying a new trial, to consider the weight of Rutina’s testimony and to determine whether, in view of the evidence as a whole, it was likely that such testimony played a decisive part in the jury’s verdict of guilty.
After denial of his first motion for a new trial, Coggins presented a second motion, this time taking pains to include an allegation that the perjured testimony of Theresa Rutina was known to be such by Mr. Sprague, the prosecutor, and was “presented as perjured testimony upon the advice, inveiglings and encouragement of the aforementioned Prosecutor.” In support of this second motion, .Theresa Rutina obliged by executing a new affidavit to the same effect as her first one, with the added embellishment that the prosecutor had asked her to testify that Coggins had made a certain incriminating admission to her at the jail; that the prosecutor told her that the state “had enough evidence to get Coggins, but I could help him a lot if I said this also —even though it was not exactly true.” In rebuttal of this affidavit, an officer of the *142state police testified at the hearing on the second motion that when he questioned Rutina as to the truth of her affidavit, she admitted orally that her testimony at the trial was true. Also at the hearing on the second motion, Coggins, apparently in the belief that it would strengthen his case for a new trial, presented to the judge an unsworn statement signed by one of the jurors to the effect that he had considered Rutina’s testimony “to.be vitally important” and that it played "a great part” in the verdict he rendered. To counter this statement the Commonwealth presented an affidavit of the same juror to the effect that he had signed the aforesaid statement under a misapprehension; “that insofar as I was concerned I was satisfied of Coggins’ guilt without the testimony of Theresa Rutina and would have found him guilty without Rutina’s testimony.” Evidently, therefore, the injection into the second hearing of this issue whether Rutina’s alleged perjured testimony played a decisive part in the jury’s verdict was at the instance of Coggins rather than of the Commonwealth. Of course such issue would not have been out of place if the judge believed Rutina’s affidavit to the extent of her affirmation that she had given false testimony at the trial, and disbelieved her affidavit to the extent that she belatedly alleged that such false testimony was knowingly instigated by the prosecutor. In fact, during the course of the argument at the second hearing, little or no notice was taken of this belated allegation by Rutina of the prosecutor’s complicity. From a reading of 'this transcript of the second hearing as a whole, I see no reason at all to infer that Judge Pinanski (1) believed that Rutina had perjured herself at the trial, (2) believed that this testimony was introduced by the Commonwealth at the trial with the knowledge by the prosecutor of its untruth, but (3) misconceiving the scope of the protection of the Due Process Clause, concluded that the ensuing, conviction was not thereby vitiated, because in all likelihood Rutina’s testimony did not play a decisive part in the jury’s verdict. At one point during the hearing on the second motion, Judge Pinanski remarked: “I say to him if I found as a fact he was convicted upon perjured testimony, I would set aside the verdict of the jury without the slightest hesitation.” It' is altogether reasonable to infer that Judge Pinanski denied the motion for a new trial because he did not believe Rutina’s recantation.
The second motion for a new trial was denied, and on appeal therefrom the judgment was affirmed. Commonwealth v. Coggins, 1949, 324 Mass. 552, 87 N.E.2d 200, certiorari denied, 1949, 338 U.S. 881, 70 S.Ct. 152
Safeguarding the constitutional rights of an accused is the obligation of state judges no less than federal judges. Though in accordance with common local practice the superior court judge made no formal findings of fact or conclusions of law, nor did he file a memorandum of decision, in denying the motion for a new trial, it is not to be assumed that he denied the motion under a misapprehension of well-settled requirements of the Due Process Clause of the Fourteenth Amendment. Such an assumption would be particularly out of place in the case of an able and respected judge such as the late Judge Pinanski, who presided at the trial of Coggins and heard his motions for a new trial. Judge Pinanski heard Rutina testify at the trial, he had opportunity to observe what manner of man the prosecutor was, and on the second motion for a new trial he heard the testimony of the police officer to the effect that Rutina, after having executed the recanting affidavit, admitted to him that the testimony at the trial was the truth. The judge was therefore in a favorable position to estimate the truth of Rutina’s affidavits, particularly the truth of the new allegation in her second affidavit that the prosecutor put her up to testifying falsely. Under the circumstances the judge certainly had reason for robust skepticism; and the most likely inference is that Judge Pinanski disbelieved Rutina’s affidavits, the second of which was the only foundation for Coggins’ claim that his conviction had been obtained in violation of his constitutional rights because of the prosecutor’s knowing use of perjured testimony.
*143Having failed in the state courts, Coggins now seeks to transfer the battle to the federal arena.
Generalizations in the field of habeas corpus have proved quite troublesome. Cf. the several opinions in Sunal v. Large, 1947, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982. One common generalization is that when a lower court has denied a petition for habeas corpus without requiring the respondent to answer and without a hearing, the appellate court on review “must assume that the petitioner’s allegations are true.” House v. Mayo, 1945, 324 U.S. 42, 45, 65 S.Ct. 517, 89 L.Ed. 739; Williams v. Kaiser, 1945, 323 U.S. 471, 473-474, 65 S.Ct. 363, 365, 89 L.Ed. 398. But no such assumption is required where the petitioner had previously filed another petition for habeas corpus, setting forth the same ground of relief, and the judge before whom the earlier petition was presented, after a fair hearing and full consideration, had found against him on the allegations of fact underlying his constitutional claim. Though the second petition for habeas corpus is not absolutely barred on grounds of res judicata,3 nevertheless, the court may as a matter of discretion decline to inquire into the matter again, where it might reasonably conclude, in view of the consideration and denial of the earlier application, that the allegations of the petition are probably groundless. “Thus there is avoided abuse of the writ by repeated attempts to secure a hearing on frivolous grounds, and repeated adjudications of the same issues by courts of coordinate powers.” Darr v. Burford, 1950, 339 U.S. 200, 215, 70 S.Ct. 587, 596, 94 L.Ed. 761. Having as a matter of discretion denied such a renewed application, the court ought not pro forma to issue a certificate of probable cause in order to enable petitioner to appeal, for this would defeat the salutary purpose of the requirement in 28 U.S.C.A. § 2253. See Fred Tate v. People of the State of California, 9 Cir., 1951, 187 F.2d 98.
So far as this matter of discretion goes, I don’t suppose it would make any difference whether the earlier application for habeas corpus had béen made to a state court or to a federal court. In Darr v. Bur-ford, supra, the earlier application had been made to the Oklahoma Court of Criminal Appeals; and even if the petitioner in that case had not been under what the Supreme Court held to be an insuperable obstacle, namely, that he had failed to apply for certiorari, I think the federal district court could in its discretion have declined to entertain the second petition for habeas corpus if it concluded from an examination of the earlier habeas corpus proceedings that petitioner had had a fair opportunity to establish the factual basis of his constitutional claim and had failed to do so. In Ex parte Cuddy, C.C.S.D.Cal.1889, 40 F. 62, Mr. Justice Field had before him a second application for a writ of habeas corpus. While holding the doctrine of res judicata inapplicable, he said, 40 F. at page 65, that the judge before whom a second application was made “may take into consideration the fact that a previous application had been made to another officer and refused; and in some instances that fact may justify a refusal of the second. The action of the court or justice on the second application will naturally be affected to some degree by the character of the court or officer to whom the first application was made, and the fullness of the consideration given to it.” This language was quoted with approval in Salinger v. Loisel, 1924; 265 U.S. 224, 231, 44 S.Ct. 519, 68 L.Ed. 989. Nor would it matter, I think, whether the earlier adverse factual determination had been made in a habeas corpus proceeding, or under some other form of «state corrective process, such as a writ of error coram nobis, or as in the case at bar by a motion for a new trial on the ground of newly discovered evidence. I am speaking'now of a prior adverse factual determination, not a prior adverse ruling on a clean-cut question of federal constitutional law, as to which quite different considerations apply, which need not be spelled out now.
Summarizing my view on the present case: I think that the court below could reasonably conclude, upon a reading of the *144voluminous petition for habeas corpus, that there was in all likelihood nothing in it; that if there were substantial reason to believe that Coggins had been convicted upon perjured testimony with the complicity of the prosecutor, he would have obtained a new trial under the corrective process afforded by the state and administered here, so far as appears, in entire good faith and rectitude by the trial judge and by the Supreme Judicial Court; that this is not one of those exceptional cases where a federal district judge should exercise the delicate jurisdiction of inquiring into the administration of criminal justice in a state; and that in the exercise of a sound judicial discretion the petition for habeas corpus should be dismissed without prejudice. Of course, to the extent that entertaining a petition for habeas corpus is within the discretion of the judge, the personality of the.judge to whom the petition is presented may make a difference; one judge may be inclined to issue the writ, another to dismiss the petition. This is inherent in the situation, and inescapable. If the judge in such a case dismisses the petition, appellate review is limited to an inquiry whether there has been an abuse of discretion. Appellate courts cannot lay down binding rules for the exercise of this discretion. To the extent that they do prescribe binding rules for particular situations, the area of discretion is correspondingly reduced.
I reject the alternative that under the circumstances here present the district.judge, contrary to the holding of the Second Circuit in the Schechtman case, supra, was bound as a matter of law to throw open the federal court to a full-dress hearing on whether the state prosecutor connived at the introduction of perjured testimony to aid in the conviction of Coggins. If the court below had done this, and Coggins had offered in support of his claim no more than he offered to Judge Pinanski, how could the federal court have come to the confident conclusion, contrary to what I think must have been the conclusion of Judge Pinanski, that Rutina perjured herself at the trial to the knowledge and indeed at the suggestion of the prosecutor? And if Coggins has any additional evidence in support of his grave charge, which he has not presented to the state courts, is it. not clear from all the recent cases, and now from the statutory mandate of 28 U.S.C.A. § 2254, that such new evidence should first be presented to the state courts if state corrective process is still available to vindicate petitioner’s constitutional claim? Notwithstanding the lapse of time, and all that has gone before, there is still such corrective process available, in the form of a writ of error, which may be issued out of the Supreme Judicial Court under C. 250, Mass.Gen.Laws (Ter.Ed.1932) §§ 1, 2, 9 and 10. See Allen v. Commonwealth, 1949, 324 Mass. 558, 87 N.E.2d 192; McGarty v. Commonwealth, Mass., 95 N.E.2d 158.
In reaching this conclusion, I attach no significance to the denial of certiorari by the Supreme Court of the United States at an earlier stage. 338 U.S. 881, 70 S.Ct. 152.
Whatever difficulties there may be with the holding and discussion in Darr v. Burford, 1950, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761, they need not perplex us here. Whether or not failure of Coggins to apply for certiorari would have been a conclusive bar to the entertainment of a subsequent petition for habeas corpus, Coggins did apply for. certiorari here and was denied. The Supreme Court has many times admonished us that the denial of a writ of certiorari “imports no expression of opinion upon the merits of the case,” United States v. Carver, 1923, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361, and I do not understand that the opinion of the Court in Darr v. Burford has repudiated that proposition. See 339 U.S. at page 216, 70 S.Ct. at page 596.
Furthermore, in any event a lower federal court in a habeas corpus case could certainly not attach any conclusive significance to an earlier denial of certiorari without examining very closely into the record presented to the Supreme Court on the application for certiorari to see whether a federal question was necessarily involved in the judgment of the state court sought to be reviewed, and if so, what that question was. In the present case I do not see that there was any substantial constitutional *145question presented by Coggins’, application for certiorari.
Coggins objected that in the hearings on the motions for a new trial Judge Pinanski required him to offer most of his evidence in affidavit form. But it is a settled rule of Massachusetts practice, see 324 Mass. at pages 556-557, 87 N.E.2d at pages 202, 203, that a party has no fight to insist upon the presentation of oral evidence at a hearing upon a motion for a new trial; that the superior court may receive oral testimony, affidavits, or both, at its discretion. It cannot seriously be contended that this rule of local practice runs afoul of the Due Process Clause. The state is not obliged to maintain any particular form of corrective process. See Hysler v. Florida, 1942, 315 U.S. 411, 415-417, 316 U.S. 642, 62 S.Ct. 688, 86 L.Ed. 932. Massachusetts could indeed abolish the motion for a new trial on the ground of newly discovered evidence, and leave convicted persons to their remedy by way of application to the Supreme Judicial Court for a writ of error. It is not the function of the Supreme Court of the United States to prescribe the details of state procedure in these matters; though the adequacy and fairness of any particular state corrective process might have relevance upon the appropriateness of the exercise of habeas corpus jurisdiction by a federal court. See 28 U.S.C.A. § 22'54.
Nor do I see how the Supreme Court on certiorari could have possibly determined the merit of Coggins’ claim that the prosecutor knowingly made use of perjured testimony to secure his conviction. The Supreme Judicial Court had held that Judge Pinanski, following the approved local procedure in hearing the motions for a new trial, did not abuse his discretion in denying a new trial. This conclusion could not have been overturned by the Supreme Court as a matter of federal constitutional law.
And so, it seems to me, the denial of certiorari has no bearing upon the question now before us. Entirely apart from that, I think the order of the District Court should be affirmed.
. See Salinger v. Loisel, 1924, 265 U.S. 224, 230-231, 44 S.Ct. 519, 68 L.Ed. 989; Darr v. Burford, 1950, 339 U.S. 200, 214, 70 S.Ct. 587, 94 L.Ed. 761; Johnston v. Wright, 9 Cir., 1943, 137 F.2d 914; United States ex. rel. Gregoire v. Watkins, 2 Cir., 1947, 164 F.2d 137, 138.
. See footnote 2 supra.