                 Not for Publication in West's Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                         For the First Circuit


No. 02-2085

                             FRANCIS STEWART,

                         Petitioner, Appellant,

                                       v.

                               PAUL DIPAOLO,

                          Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. George A. O'Toole, Jr., U.S. District Judge]


                                    Before

              Campbell and Stahl, Senior Circuit Judges,
                      and Lynch, Circuit Judge.



     Francis Stewart on brief pro se.
     Natalie S. Monroe, Assistant Attorney General, Criminal
Bureau, Thomas F. Reilly, Attorney General, on brief for appellee.



                               July 15, 2003
              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 (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.


                                     -2-
         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).




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