Chan

MEMORANDUM **

Vincent Chan was convicted of driving under the influence of alcohol with a spe *802 cial finding of willfully refusing to submit to a chemical test. He now appeals the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. His request for a certificate of appealability was granted with respect to the issue whether perjury was used to obtain his conviction.

We review the district court’s decision to deny the 28 U.S.C. § 2254 habeas petition de novo. McClure v. Thompson, 323 F.3d 1233, 1240 (9th Cir.2003). Findings of fact made by the district court are reviewed for clear error. Id.

DISCUSSION

Under the Due Process Clause, “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976) (footnote omitted). The precondition to the application of this principle is that Officer Randolph committed perjury. This requires proving that Randolph not only gave false testimony, but that he did so with a willful…