Luna

MEMORANDUM **

We review petitioner Roberto Luna’s appeal from the denial of his petition for habeas corpus. The magistrate judge below gave this case careful and deliberate attention, and, like him, we are troubled that Luna’s conviction and thirty-six-year sentence rest on testimony that has been recanted many times over. However, under clearly established Supreme Court law, the mere fact that the evidence upon which Luna was convicted — namely, the testimony of his then-wife that he raped her on two separate occasions — has been cast into serious doubt is not enough to grant the relief he requests. Rather, under Napue v. Illinois, 360 U.S. 264 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959), and United States v. Agurs, 427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976), in order to prevail Luna must demonstrate both that the evidence used to convict him was false and that the prosecutor knew or should have known that this was the case.

We need not sift through the various recantations, recantations of recantations, or the competing testimony offered at the evidentiary hearing below in order to resolve this appeal. That evidence goes to the first Agurs prong — whether Luna’s…