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.[495] 

 

            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.”[496]

[495] See Herrera v. Collins, 506 U.S. 390 (1993);D. Wilkes, Federal Postconviction Remedies and Relief 172 (1996), and cases cited.

[496] 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).

Ninth Circuit

FEDERAL " HABEAS " GROUNDS " ACTUAL INNOCENCE
Alaimalo v. United States, ___ F.3d ___, 2011 WL 677998 (9th Cir. February 28, 2011)(district courts dismissal of habeas petition, 28 U.S.C. 2241, is vacated where defendant is actually innocent and failing to consider petition would result in manifest injustice).

FEDERAL " HABEAS " GROUNDS " ACTUAL INNOCENCE
Alaimalo v. United States, 636F.3d 1092, 2011 WL 677998 (9th Cir. February 28, 2011)(district courts dismissal of habeas petition, 28 U.S.C. 2241, is vacated where defendant is actually innocent and failing to consider petition would result in manifest injustice).

POST CON RELIEF " GROUNDS " INSUFFICIENCY OF EVIDENCE POST CON RELIEF -- RULE OF LENITY " EXCEPTION " CLAIMS OF INSUFFICIENCY OF EVIDENCE
United States v. Nevils, 598 F.3d 1158, 2010 WL 986790 (9th Cir. March 19, 2010)(en banc)(in assessing a claim that a conviction is invalid because the evidence is insufficient to sustain in, under Jackson v. Virginia, the normal rule of lenity requiring the Court of Appeals to construe evidence in manner favoring innocence rather than in manner favoring the prosecution, does not apply); overruling United States v. Bishop, 959 F.2d 820 (9th Cir. 1992); United States v. Vasquez-Chan, 978 F.2d 546 (9th Cir. 1992); United States v. Wiseman, 25 F.3d 862 (9th Cir. 1994); United States v. Corral-Gastelum, 240 F.3d 1181 (9th Cir. 2001); Brown v. Farwell, 525 F.3d 787 (9th Cir. 2008). The standard of review of claims of insufficiency of the evidence is as follows: The Supreme Court's recent decision in McDaniel v. Brown, reversing a decision by this court, highlights our error. 130 S.Ct. at 673-74. In McDaniel, the defendant had been convicted of sexual assault of a child. Id. at 666. On appeal, we concluded that the evidence was insufficient to establish defendant's guilt beyond a reasonable doubt. See Brown v. Farwell, 525 F.3d 787, 797-98 (9th Cir.2008). In so holding, we discounted the government's argument that the defendant had washed his clothes when he returned home in order to destroy physical evidence of the rape, stating that while the government's theory was plausibly consistent with him being the assailant, the defendant had provided an alternative reason for washing his clothes. Id. at 797. The Supreme Court rejected this analysis, holding that had we reviewed the evidence as required by Jackson, we would have concluded that the evidence supports an inference that [defendant] washed the clothes immediately to clean blood from them, rather than adopting an exculpatory explanation. McDaniel, 130 S.Ct. at 674. The Court concluded that the Court of Appeals' analysis failed to preserve the factfinder's role as weigher of the evidence by reviewing all of the evidence ... in the light most favorable to the prosecution. Id. (alteration in original) (emphasis omitted) (quoting Jackson, 443 U.S. at 319). Accordingly, to the extent Bishop and its progeny construed evidence in a manner favoring innocence rather than in a manner favoring the prosecution, and required reversal when such a construction was not any less likely than the incriminating explanation advanced by the government, Vasquez-Chan, 978 F.2d at 551, they strayed from the test established in Jackson, and made plausible exculpatory constructions disapproved of in McDaniel v. Brown. We now overrule them. In reaching this conclusion, however, we acknowledge our obligation under Jackson to identify those rare occasions in which a properly instructed jury may ... convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt[.] Jackson, 443 U.S. at 317. Although Jackson requires the reviewing court initially to construe all evidence in the favor of the government, the evidence so construed may still be so supportive of innocence that no rational juror could conclude that the government proved its case beyond a reasonable doubt. Moreover, the evidence construed in favor of the government may be insufficient to establish every element of the crime. We have held, for example, that evidence is insufficient to support a verdict where mere speculation, rather than reasonable inference, supports the government's case, see Juan H. v. Allen, 408 F.3d 1262, 1277-79 (9th Cir.2005), or where there is a total failure of proof of [a] requisite element, Briceno v. Scribner, 555 F.3d 1069, 1079 (9th Cir.2009). Further, we have long held that evidence of mere proximity to contraband, or association with a person having possession of such contraband, is insufficient standing alone to support a finding of possession of that contraband. See United States v. Chambers, 918 F.2d 1455, 1459 (9th Cir.1990); see also Arellanes v. United States, 302 F.2d 603, 606 (9th Cir.1962). (Id. at ___.)