
    Francis STEWART, Petitioner, Appellant, v. Paul DIPAOLO, Respondent, Appellee.
    No. 02-2085.
    United States Court of Appeals, First Circuit.
    July 15, 2003.
    Francis Stewart on brief pro se.
    Natalie S. Monroe, Assistant Attorney General, Criminal Bureau, Thomas F. Reilly, Attorney General, on brief for appellee.
    Before CAMPBELL and STAHL, Senior Circuit Judges, and LYNCH, Circuit Judge.
   PER CURIAM.

After a thorough review of the record and of the parties’ submissions, we affirm.

The Massachusetts Supreme Judicial Court (“SJC”) found that Stewart’s 1960 firearms conviction would have been admissible had Stewart taken the stand. Petitioner Francis Stewart (“Stewart”) argues this conclusion was based on an erroneous factual premise: that he was represented by counsel during the 1960 proceeding. In a federal habeas action, the factual findings of the state court are presumed correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The 1960 docket sheet shows Stewart did receive appointed counsel. Stewart claims otherwise, but his assertion, standing alone, is insufficient to meet the clear and convincing evidence standard.

As for the admissibility of the misdemeanor conviction for operating a motor vehicle under the influence, we agree with the state appellate court’s assessment that admission of the evidence would have been harmless beyond a reasonable doubt under the standard in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), given that evidence of four prior felony convictions also would have been available to impeach Stewart. As the trial court planned to admit the evidence in the event Stewart testified, it was clear Stewart only could prevent admission of the evidence by choosing not to testify. Thus, his attorney’s advice to this effect was correct.

Ultimately, then, the advice Stewart received in the course of deciding whether to testify was correct. His ultimate waiver of his right to testify was knowingly made and was valid.

Appellee’s motion to strike is denied.

Affirmed. See 1st Cir. Loc. R. 27(c).  