Post-Conviction Relief for Immigrants

Federal courts are divided on the question whether newly discovered evidence of innocence constitutes a ground of habeas corpus relief in and of itself: the majority view is that it does not, but there is a strong minority view to the contrary.[489] 

            Where the defendant relies upon newly discovered evidence that the prosecution unwittingly used perjured testimony to secure the conviction, the error requires reversal only where discovery of the perjury “probably would result in acquittal upon retrial.”[490]

[489] See Herrera v. Collins, 506 U.S. 390 (1993); D. Wilkes, Federal Postconviction Remedies and Relief 172 (2003), and cases cited.

[490] United States v. Huddleston, 194 F.3d 214 (1st Cir. 1999); United States v. Torres, 128 F.3d 38 (2d Cir. 1997); United States v. Krasny, 607 F.2d 840, 844-45 (9th Cir. 1979); but see Larrison v. United States, 24 F.3d 82 (7th Cir. 1928) (reversal required if reasonable possibility correction of the error might have produced acquittal).  The Supreme Court test holds that prosecutorial nondisclosure of knowing use of perjured testimony requires reversal only if there is a “reasonable likelihood” that the false testimony affected the verdict.  United States v. Agurs, 427 U.S. 97 (1976); see Sistrunk v. Armenakis, 292 F.3d 669 (9th Cir. June 6, 2002) (defendant’s attempt to discredit and impeach witness testimony did not constitute sufficient “newly presented evidence” that might show actual innocence or call into question reliability of conviction on habeas petition).