United States ex rel. Henne v. Fike, 563 F.2d 809, 813 (7th Cir. 1977), cert. denied, 434 U.S. 1072, 98 S.Ct. 1257, 55 L.Ed.2d 776 (1978). See also United States ex rel. Moore v. Brierton, 560 F.2d 288, 292 (7th Cir. 1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1285, 55 L.Ed.2d 794 (1978); Wilson v. Lash, 457 F.2d 106, 108 (7th Cir.), cert. denied, 409 U.S. 881, 93 S.Ct. 211, 34 L.Ed.2d 136 (1972). Thus, unless we are left with a "definite and firm conviction that a mistake has been committed," United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948), we must accept the trial court's findings.
Amicus argues that Jones' "Supportive Documentation" is insufficient to establish the truth of his allegations, and the briefs before us argue extensively the question of whether that "Documentation" gives to his allegations the ring of truth. It is unnecessary, however, to answer that question definitively on this appeal. This court has stated unequivocally that "where a prisoner's habeas petition is dismissed without requiring the respondent to answer, the allegations must be deemed true for the present purposes." United States ex rel. Curtis v. Illinois, 521 F.2d 717, 721, cert. denied, 423 U.S. 1023, 96 S.Ct. 465, 46 L.Ed.2d 397 (1975); Wilson v. Phend, 417 F.2d 1197, 1199 (1969), later appeal aff'd sub nom., Wilson v. Lash, 457 F.2d 106, cert. denied, 409 U.S. 881, 93 S.Ct. 211, 34 L.Ed.2d 136 (1972). Thus, for example, Jones alleges in his petition that his conviction was obtained through knowing use of perjured testimony.
We affirm the judgment dismissing his petition. Rule 52(a), F.R. Civ.P., United States ex rel. Henne v. Fike, 563 F.2d 809, 813 (CA7 1977), cert. denied 434 U.S. 1072, 98 S.Ct. 1257, 55 L.Ed.2d 766; Wilson v. Lash, 457 F.2d 106, 108 (CA7 1972), cert. denied 409 U.S. 881, 93 S.Ct. 211, 34 L.Ed.2d 136. IT IS SO ORDERED.
In accordance with Rules 52(a), and 81(a)(2), Federal Rules of Civil Procedure, we may set aside the district court's findings of fact in this habeas corpus action only if they are clearly erroneous. Wilson v. Lash, 457 F.2d 106, 108 (7th Cir. 1972), cert. denied 409 U.S. 881, 93 S.Ct. 211, 34 L.Ed.2d 136; United States v. Sain, 295 F.2d 699, 701 (7th Cir. 1961). See United States ex rel. Bibbs v. Twomey, 538 F.2d 151 (7th Cir. 1976).
Petitioner has not proved that Moore perjured himself or that Pochordo or the prosecutors knew it. And both statute ( 28 U.S.C. ยง 2254(e)(1)-(2)) and case law (Wilson v. Lash, 457 F.2d 106 (7th Cir. 1972)) place the burden of proving deprivations of due process of law as well as any failure of state court adjudication upon the petitioner. B. The Payments to Moore
The burden of proof in all these matters is upon the petitioner. Wilson v. Lash, 457 F.2d 106, 108 (7th Cir.), cert. denied, 409 U.S. 881, 93 S.Ct. 211, 34 L.Ed.2d 136 (1972). Finally, there can be no dispute whether Henderson told his counsel about the witness since his attorney listed the witness in his response to the People's discovery motion.