ON PETITION FOR REHEARING
PER CURIAM.This is an appeal from an order of the District Court denying a state prisoner’s petition for habeas corpus relief. This Court affirmed that decision in a memorandum opinion entered upon June 29, 1972. The case is presently before the Court upon a motion for leave to file an untimely petition for rehearing and a suggestion of rehearing en banc. Two affidavits accompany the motion. In each the affiant states that due to an error by a law student with regard to the date of the opinion, the ninety-day period for petitioning for certiorari to the Supreme Court expired. Having considered the motion and the affidavits filed in support thereof, the Court is of the opinion that the affidavits are insufficient to support a delayed filing of the motion to reconsider.
In denying the said motion to file a petition for rehearing, the Court has carefully reviewed the petition, the authorities cited therein, the bill of exceptions and the entire record made on this appeal.
The single matter now complained of is the failure of the trial court to compel the testimony of Ellie Davis, Jr., and Richard Armstrong, two prison inmates called as witnesses by the defense. A careful reading of the trial record clearly reflects that the testimony of Ellie Davis was proffered in support of the defense that prison conditions justified the riot. The testimony was excluded by the trial judge as irrelevant, and properly so. No error would lie for failure to compel incompetent and irrelevant testimony.
The testimony of the witness Richard Armstrong was likewise proffered in the absence of the jury. While the record does not reflect the purpose for which the testimony was proffered, the record reveals no refusal on the part of the Court to compel the witness to testify. While it is true that the trial court did erroneously instruct the witness when it advised him that he would not be compelled to answer questions that might “incriminate or degrade” him, the witness neither requested nor was he granted this privilege. Rather, he expressed an unwillingness to testify unless given assurance against reprisals by prison staff personnel. At this point the examination of the witness ceased without any ruling by the Court or any request for a ruling by the Court. Reluctance of a witness to testify, when it is acceded to by counsel, does not rise to the level of a judicial failure to compel testimony.
The petition to rehear will be denied for untimely filing.