Green filed a pro se habeas corpus petition in the district court, alleging that the evidence adduced in his state court murder trial was insufficient to support his conviction. The issue before us is whether the district court erred in dismissing Green's petition without first ordering and examining the trial record. We hold that an examination of the record is not required where, as here, the petitioner fails to identify any incompleteness or inaccuracies in the facts before the district court.

* Green was convicted in Illinois state court of the murder of a service station night watchman. The evidence supporting this conviction was largely circumstantial. The victim apparently was killed during a robbery of station funds, which were kept in a distributor cap box, locked in a desk drawer, in a locked storage room. A station jeep, locked inside the station with its keys in the ashtray, had been used to break into the storage room. Green, who was a former employee of the station, knew where both the station funds and the keys to the jeep were kept. A search of his car uncovered the distributor cap box containing the station's money. Green's account of how he gained possession of the money changed during the course of questioning by police. He initially admitted being at the station, but claimed the desk drawer was open when he arrived. He later admitted forcing the drawer open. At all times, however, he insisted that he was innocent of murder. Upon his conviction, Green was sentenced to twenty to forty years imprisonment.

Green appealed his murder conviction to the Illinois Appellate Court, arguing that the evidence introduced at trial was insufficient to prove his guilt beyond a reasonable doubt. The state appellate court, after an examination of the record, affirmed the trial court verdict in an opinion which included a lengthy summary of the evidence in the case. People v. Green, 62 Ill.App.3d 420, 19 Ill. Dec. 604, 379 N.E.2d 119 (1978).

Green then filed a habeas corpus petition with the district court.1 Green's petition reviewed the evidence presented at trial and concluded that "the evidence does not so fairly establish my guilt of murder that no reasonable hypothesis of innocence exists." The state moved for summary judgment or dismissal and submitted a memorandum of law in support of its motion. This memorandum contained a factual summary of the evidence adduced at trial and included an offer to obtain a trial court record if the district judge so required. Green filed a response which, essentially, challenged some inferences that the state drew from the facts at trial, and which also moved for summary judgment or dismissal. The district court determined that an examination of the trial record was unnecessary since Green did not dispute the factual findings of the state appellate court, but rather claimed that these findings were inadequate to support his conviction. The court then granted the state's motion and dismissed the petition.

* The district court found that an examination of the record was unnecessary because "(p)etitioner does not contest the findings made by the Appellate Court on his appeal, but merely argues in his petition that it (sic ) does not satisfy the requirements of Jackson v. Virginia." The district court had before it four documents summarizing the evidence adduced at trial: the state appellate court's opinion, Green's habeas corpus petition, the state's motion to dismiss, and Green's response to that motion. Green's petition provided a summary of the evidence that was virtually identical to the state appellate court's summary, and concluded that "the evidence does not so fairly establish my guilt of murder that no reasonable hypothesis of innocence exists."2

From this, the district court correctly determined that Green did not allege any inaccuracies or incompleteness in the factual summaries before the court, but rather was raising the question of whether the circumstantial evidence was sufficient as a matter of law to uphold the guilty verdict. There was thus no need to examine the trial record, and the court properly made its ruling based on the uncontradicted fact summaries that it had before it.3

Our decision here finds support in Blenski v. LaFollette, 581 F.2d 126 (7th Cir. 1978). There a habeas corpus petitioner alleged that there had been insufficient evidence to support his state court conviction and moved for the production of the state court transcripts. The district judge denied the motion, and this court upheld the district court. Although the district court found that the petitioner had not in fact alleged insufficiency of evidence in his petition, but rather had claimed that inferences which should have been drawn from the evidence were not drawn by the state appellate court,4 we noted that even if the petitioner's habeas corpus claim had been characterized as one alleging insufficiency of evidence, examination of the trial transcript would have been unnecessary since "(t)he petitioner's pleadings and briefs do not contradict but actually confirm the state court factual summary." Id. at 128.

Similarly, in this case Green in no way challenged the accuracy or completeness of the facts as summarized by the state appellate court, but only whether the conclusions drawn from those facts were permissible.5 The papers which he filed, like those in Blenski, served to "confirm the state court factual summary." Thus, examination of the record by the district court was unnecessary.

The Ninth Circuit has reached the same conclusion in a similar case. In Linden v. Dickson, 278 F.2d 755 (9th Cir. 1960), a habeas corpus petitioner alleged that his conviction in state court was invalid because he had been incompetent by reason of insanity when he waived counsel at trial. The district court had relied upon the factual summary contained in the state appellate court's opinion on the issue and did not order or examine the record. The Ninth Circuit upheld this procedure, finding that there were no allegations of fact in the petition which contradicted the facts in the state appellate court opinion. The court noted that it would have been "a simple matter" for the petition to have alleged inaccuracies or incompleteness in the factual summary of the state appellate court, and concluded that the facts were therefore not at issue. Id. at 759.

Green argues, however, that Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), imposes a requirement that district courts examine the full trial record whenever a habeas corpus petition alleges insufficiency of evidence. We find no such requirement in Jackson.

The Jackson Court's primary concern was with the standard to be applied by federal district courts in reviewing the sufficiency of evidence supporting state court convictions. The Court overruled the requirement, enunciated in Thompson v. Louisville, 362 U.S. 199, 80 S. Ct. 624, 4 L. Ed. 2d 654 (1960), that the habeas corpus petitioner establish that "no evidence" existed to support the state court conviction. Instead, the Court found that habeas corpus relief is appropriate "if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324, 99 S.Ct. at 2792 (footnote omitted). Green contends that the words "record evidence adduced at the trial" require the district court to examine the entire record when ruling on a claim that the evidence at trial was insufficient to support a conviction.

Green's reliance upon this phrase is misplaced, however. The Jackson Court was concerned with ensuring that state court decisions based upon " 'a mere modicum of evidence' " would not be upheld. Id. at 320, 99 S.Ct. at 2790, quoting Jacobellis v. Ohio, 378 U.S. 184, 202, 84 S. Ct. 1676, 1685, 12 L. Ed. 2d 793 (1964) (Warren, C. J., dissenting). The Court never addressed the question of whether an examination of the full trial record was necessary, since the district court had examined the record. Id. at 312, 99 S.Ct. at 2785. There is no analysis or discussion in the opinion to indicate that the Court was formulating the requirement that Green asserts here. We thus decline to read an isolated section of Jackson as stating a holding on an issue not before the Court.

Indeed, requiring the district court in this case to examine the full trial record would run afoul of the Jackson Court's recognition that "(a) judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts ...." Id. at 323, 99 S.Ct. at 2791. Where, as here, the petitioner does not challenge the facts as summarized in the state appellate opinion, a search of the record for inadequacies in that summary would not constitute such deference.

Our conclusion is also consistent with the Supreme Court's decision in Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981). There, the Court emphasized that the 1966 amendment to the habeas corpus statute, 28 U.S.C. § 2254 (1980), which added § 2254(d), represented an attempt by Congress to "alleviate" the friction between state and federal courts resulting from the ability of the federal courts to overturn state court opinions under the habeas statute. Id. at 550, 101 S.Ct. at 771. Toward this end, § 2254(d) bestows a "presumption of correctness" upon state court fact finding. Id. at 547, 101 S.Ct. at 769.6 See Bruce v. Duckworth, 659 F.2d 776 at 779-780 (7th Cir. 1981).

The Sumner Court held that this presumption "applies to factual determinations by state courts, whether the court be a trial court or an appellate court." Id. at 547, 101 S.Ct. at 769. Where a state appellate court makes a finding of fact after a "hearing," defined by the Court as "an opportunity to be heard," this finding can only be overturned by convincing evidence that the finding was erroneous. Id. at 546, 101 S.Ct. at 768. Here, where the state appellate court summarized its findings of fact based on the record below, the same presumption of correctness applies. The applicant's burden under § 2254(d) of establishing by convincing evidence that the factual determination was erroneous is not met in a petition which fails to allege any inaccuracies or incompleteness in the appellate court's findings.

Green's final claim is that a different section of the habeas corpus statute, specifically § 2254(e),7 supports his position that the district court was required to examine the trial record. An examination of subsection (e), though, belies this assertion.

First, the statute places the burden upon habeas corpus petitioners to produce "pertinent" parts of the record. This burden is shifted to the state only if petitioners demonstrate that they are "unable" to bear it. Green, however, never alleged an inability to obtain the record nor did he attempt to obtain it.

More importantly, § 2254(e) clearly contemplates that the petitioner must identify those "parts" of the record which are "pertinent" to the insufficiency of evidence claim. If Green intended to challenge the accuracy or completeness of the record, pertinent parts of the record would have been sections which were not mentioned in the appellate court opinion and which indicated Green's innocence or contradicted the facts in the appellate court's summary. Here, however, Green failed to identify any incompleteness or inaccuracies in the state appellate court opinion.8 This is not surprising since, as we have already noted, Green's claim was that the circumstantial evidence set forth in the appellate opinion could not support a finding of guilt beyond a reasonable doubt. Therefore, no section of the record was "pertinent" under § 2254(e), so that examination of the entire trial court record was not required.

An interpretation of § 2254(e) that requires a review of the full record whenever a habeas corpus petition alleges insufficiency of evidence would conflict with the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. following § 2254 (1980), which were promulgated by the Supreme Court. Rule 4 states that a district court is free to dismiss a petitioner's claim as frivolous without examining any documents beyond those submitted by a petitioner. This refutes Green's assertion that the statute commands a full examination of the record whenever a claim of insufficiency is alleged.

Furthermore, Rule 5 explicitly states that a full production of the record is not required by the habeas corpus statute even when the district court determines that the state is required to answer the petition. The rule requires only that the state provide "such portions of the transcripts as the ... (state) deems relevant." If the court finds that the state has not released sufficient portions of the transcripts, "(t)he court on its own motion or upon request of the petitioner may order that further portions of the existing transcript be furnished or that certain portions of the non-transcribed proceedings be transcribed and furnished" (emphasis added). By the use of the discretionary "may" instead of the mandatory "shall," the rule clearly contradicts Green's claim that the habeas corpus statute required the district court to examine the trial record in this case.

We, therefore, conclude that the district court need not examine the full trial record where a habeas corpus petitioner alleges insufficiency of evidence without identifying inaccuracies or incompleteness in the factual summaries before the court. Neither case law nor the habeas corpus statute compels such a time-consuming and superfluous procedure. The judgment of the district court is

Affirmed.