8th Circuit Notes Split Re: Standard of Review for Due Process Violation When Government Unknowingly Sponsored False Testimony Leading to a Conviction

Per Evenstad v. Carlson, 470 F.3d 777 (8th Cir. Nov. 30, 2006):

The Supreme Court has not addressed the issue of whether a due process violation occurs if a conviction is based on perjured testimony which was unknown to the prosecution at the time of trial. See Jacobs v. Scott, 513 U.S. 1067, 115 S.Ct. 711, 130 L.Ed.2d 618 (1995) (Stevens, J. dissenting); Drake v. Portuondo, 321 F.3d 338, 345 n. 2 (2d Cir.2003); see also Schaff v. Snyder, 190 F.3d 513, 530 (7th Cir.1999). Furthermore, there is a circuit split regarding which standard applies in federal cases dealing with these facts. [FN6] When the federal circuits disagree as to a point of law, the law cannot be considered "clearly established" under 28 U.S.C. § 2254(d)(1). See Tunstall v. Hopkins, 306 F.3d 601, 611 (8th Cir.2002) (holding where the federal circuits disagree "it is difficult to say the [state] court's decision is contrary to, or involved an unreasonable application of, clearly established federal law").

FN6. Most circuits, including this one, absent a finding the government knowingly sponsored false testimony, require a petitioner seeking a new trial to show the jury would have "probably" or "likely" reached a different verdict had the perjury not occurred. See, e.g., United States v. Ogle, 425 F.3d 471, 472 (7th Cir.2005); United States v. Williams, 233 F.3d 592, 594 (D.C.Cir.2000); United States v. Lofton, 233 F.3d 313, 318 (4th Cir.2000) (applying "probably" standard to newly discovered evidence, but recognizing that a more lenient "might" standard would apply if the evidence is a witness recantation); United States v. Huddleston, 194 F.3d 214, 217 (1st Cir.1999); United States v. Diaz, 176 F.3d 52, 106 (2d Cir.1999); United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir.1997); United States v. Duke, 50 F.3d 571, 576-77 (8th Cir.1995); and United States v. Krasny, 607 F.2d 840, 843 (9th Cir.1979). Other circuits, like the Minnesota courts, apply a "possibility" standard granting relief whenever the discovery "might" have produced an acquittal. See, e.g., United States v. Roberts, 262 F.3d 286, 293 (4th Cir.2001); United States v. Willis, 257 F.3d 636, 643 (6th Cir.2001); and United States v. Massac, 867 F.2d 174, 178 (3d Cir.1989) (implicitly adopting Larrison).