## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 18 1997 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RONALD DALE SMITH, Petitioner-Appellant,

v. RAYMOND ROBERTS; ATTORNEY GENERAL, Respondents-Appellees, No. 95-3237

Appeal from the United States District Court

for the District of Kansas (D.C. No. 94-3135-DES)

David J. Gottlieb, University of Kansas School of L aw, Lawrence, Kansas, for Petitioner-Appellant. Jared S. Maag, Assistant Attorney General, Office o f the Kansas Attorney General, Topeka, Kansas (Kevin Fletcher, Assistant Attorney General, Office of the Kansas Attorney General, Topeka, Kansas, with h im on the brief), for Respondents-Appellees.

Before SEYMOUR , Chief Judge, PORFILIO and HENRY , Circuit Judges.

SEYMOUR , Chief Judge. Ronald Dale Smith was convicted after a state courtjury trial on two counts1 Title I of the Antiterrorism and Effective Death P enalty Act of 1996

significantly amended 28 U.S.C. § 2254, among otherprovisions. These amendments were signed into law on April 24, 1996. Mr. Smith received his certificate of probable cause and filed his notice of appeal before that date. We have held that under these circumstances, the new amendments do not apply. Se e Edens v. Hannigan , 87 F.3d 1109, 1112 n.1 (10th Cir.1996). -2- of aggravated indecent liberties with a child. He filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging thathis due process rights were violated both because admittedly false testimony wa s given at trial and because the State did not reveal the falsity as soon as it was discovered. The district court denied relief. Mr. Smith appeals and we affirm. 1

I. The evidence against Mr. Smith consisted primarily of the testimony of the victim and her mother, Mr. Smith’s then-wife, both of whom testified that Mr. Smith had sexually abused the child. Both of these witnesses also stated at trial that no sexual contact had occurred between the vic tim and a neighbor referred to as “Uncle Dick.” After trial and sentencing but wh ile the conviction was on direct appeal, the State learned that both witnesse s had admitted during parental termination proceedings in another state that the v ictim had also been sexually abused by “Uncle Dick.” The State did not inform M r. Smith of this information and relied on the trial testimony of the two witnes ses during the appeal. After Mr. Smith learned of the new evidence, he fil ed a motion for state-3-

post-conviction relief under Kan. Stat. Ann. § 60-1 507. The state district court held a hearing and determined that Mr. Smith had no t made the requisite showing for relief under state law. This ruling was upheldby the Kansas Court of Appeals, which pointed out that the State did not o btain the information until after trial. The court concluded that the State’s failure to provide the information to Mr. Smith during his direct appeal, which would have enabled Mr. Smith to seek a new trial on the basis of newly discovered e vidence, was rectified by the state post-conviction proceedings. In his federal habeas, Mr. Smith renews his contentions that he was denied due process by the f alse testimony at trial and by the State’s delay in revealing its knowledge of it.

II. We turn first to Mr. Smith’s contention that he was denied due process by the State’s failure to immediately disclose the evi dence of false testimony. “[S]uppression by the prosecution of evidence favor able to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad f aith of the prosecution.” Brady v. Maryland , 373 U.S. 83, 87 (1963). We agree with Mr. Smith that the prosecution’s duty to disclose extends to impeachme nt evidence such as that at issue here. See Bowen v. Maynard , 799 F.2d 593, 610 (10th Cir. 1986). We also-4-

agree, and the State concedes, that the duty to dis close is ongoing and extends to all stages of the judicial process. See Pennsylvania v. Ritchie , 480 U.S. 39, 60 (1987). Nonetheless, because the State did not le arn the testimony was false until after trial, prompt disclosure would only hav e allowed Mr. Smith to move the state courts to consider it in a motion for new trial. Because of the delay in disclosure, Mr. Smith was instead required to use the information as the basis for a request for post-conviction relief. However, the state appellate court ruled as a matter of state law that the same standards govern the granting of relief in both situations. Mr. Smith thus received the same heari ng, under the same standards, that timely disclosure would have allowed. A violation of the prosecution’s duty to disclose e vidence has three elements: “the defense must prove that the prosecut ion suppressed the evidence, the evidence would have been favorable to the accus ed, and the suppressed evidence was material.” Fero v. Kerby , 39 F.3d 1462, 1472 (10th Cir. 1994). The first two elements are established here. Evidence is material under the third element only “‘if there is a reasonable possibilitythat, had the evidence been disclosed to the defense, the result of the proceed ing would have been different.’” Id. (quoting United States v. Bagley , 473 U.S. 667, 682 (1985) (opinion of Blackmun, J., joined by O’Connor, J.)). Because th e prosecution in this case did not obtain the evidence until after trial, the proc eeding upon which the third-5-

element must focus is the new trial motion, not the trial itself. Here, the Kansas courts ruled in the functional equivalent of a hear ing on a new trial motion that the evidence did not warrant relief, a ruling that in effect establishes the evidence was not material to the available post-trial procee dings. Consequently, Mr. Smith’s due process rights were not denied by the S tate’s failure to disclose the information promptly.

III. Relying on Sanders v. Sullivan , 863 F.2d 218 (2d Cir. 1988), Mr. Smith also argues he was denied due process by the State’ s failure to correct the admission of false testimony by granting him a new trial. In Sanders the witness at trial who identified the petitioner as the perpe trator of the crime subsequently recanted his testimony and swore that the crime had been committed by another. The Second Circuit articulated a three-prong test f or evaluating whether the State denied due process by not granting a new trial afte r learning of the credible recantation post-trial. It held that a due process violation would occur “when a credible recantation of the testimony in question w ould most likely change the outcome of the trial and a state leaves the convict ion in place.” Id. at 222. Sanders is distinguishable from the instant case in materi al respects. A credible recantation such as that in Sanders eliminates the basis for conviction.2This circuit has held that “a writ of habeas corpu s should not be granted upon

the grounds that false and perjured testimony was u sed unless it is shown that it was knowingly used against the defendant by the prosecuting officers in the criminal case.” Wild v. Oklahoma , 187 F.2d 409, 410 (10th Cir. 1951); see also McBride v. United States , 446 F.2d 229, 232 (10th Cir. 1971) (applying same requirement in denying motion for relief under 28 U.S.C. § 2255). In viewof our conclusion that the circumstances here do not present the compelling si tuation upon which the court grounded its ruling in Sanders , we conclude this is not the case to revisit Wildand McBride as urged by Mr. Smith. -6- Contrary to the situation in Sanders , the witnesses here did not recant their testimony that Mr. Smith had sexually abused the vi ctim. Rather, the witnesses contradicted their trial testimony that the victim had not also been abused by “Uncle Dick.” While this inconsistency could well have been a valuable impeachment tool, we are not faced with the situati on in which a witness recants the testimony that names the defendant as the perpe trator of the crime. 2 Because the State did not knowingly use the false t estimony at trial, and because the new evidence contradicting trial testim ony, while impeaching, did not itself eliminate the basis for Mr. Smith’s convicti on, we hold that Mr. Smith is not entitled to relief. We AFFIRM the district court’s dismissal of Mr. Smith’s habeas petition.