Unpublished Disposition, 875 F.2d 318 (9th Cir. 1982)

No. 88-2658.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and NOONAN, Circuit Judges, and JAMES M. BURNS,^**  District Judge.

MEMORANDUM

Foreman, a state prisoner, appeals pro se from the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition without an evidentiary hearing. Foreman claims that he was denied due process by the prosecutor's use of perjured testimony to obtain the indictment. We have jurisdiction over Foreman's timely appeal pursuant to 28 U.S.C. § 2253. We affirm.

We may affirm the denial of a habeas corpus petition without an evidentiary hearing where the record "shows that the district court independently reviewed the relevant portions of the state court record." Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir. 1987). Here, the government provided the magistrate with the reporter's transcripts from the grand jury proceeding (November 18, 1982) and the trial testimony of Deputy Mauldin, the alleged perjurer (April 21-22, 1983). Because Foreman's claim rests on Mauldin's alleged perjury before the grand jury, these transcripts constituted the relevant portion of the state court record. See id. Our review convinces us that consideration of this record was sufficient to reject Foreman's claim without an evidentiary hearing. We turn now to the merits of his claim.

We have held that "the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached." United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974) (Basurto) . This holding "was carefully and narrowly drawn." United States v. Flake, 746 F.2d 535, 538 (9th Cir. 1984) (Flake), cert. denied, 469 U.S. 1225 (1985). To obtain dismissal of an indictment based on inconsistent testimony by a witness, a defendant must show that the witness knowingly falsified his testimony. Id. at 538-39. The defendant must also demonstrate that the perjured testimony related to a material issue. Id.; see also United States v. Noti, 731 F.2d 610, 613-14 (9th Cir. 1984) (Noti) ; Basurto, 497 F.2d at 785. The materiality of an allegedly perjurious statement will not be assumed. See United States v. Kaplan, 554 F.2d 958, 970 (9th Cir. 1977).

We have previously recognized the distinction between perjury and inconsistencies in a witness's testimony. Flake, 746 F.2d at 539. Foreman apparently believes that inconsistency in testimony itself constitutes perjury, but we have held to the contrary unless the defendant can demonstrate a knowing falsehood. Id. at 538-39.

Upon careful examination of the eight instances of alleged perjury raised by Foreman, and comparison of the grand jury transcript with the partial trial transcript of Mauldin's testimony, we agree with the magistrate and district court judge that Foreman's allegations of perjury demonstrate nothing more than inconsistencies in testimony. Some of the alleged instances, taken in context, are accurate, consistent statements or at worst totally immaterial inconsistencies. In another alleged instance, Mauldin merely voiced a brief, accurate summary of the views of two other witnesses who themselves appeared before the grand jury.

Inconsistencies in Mauldin's testimony provided a basis for his cross-examination. The trial jury's finding of guilt on the charge of negligent homicide followed its exposure to these inconsistencies. This suggests that they were not material to the grand jury's decision to indict. See Flake, 746 F.2d at 539; United States v. Bracy, 566 F.2d 649, 654-56 (9th Cir. 1977), cert. denied, 439 U.S. 818 (1979); Basurto, 497 F.2d at 785.

Unlike Basurto, where the prosecutor knowingly presented testimony which the witness had stated was perjured, 497 F.2d at 784-85, here Foreman has made no allegation that the prosecutor acted improperly. See Flake, 746 F.2d at 538; Noti, 731 F.2d at 613. Moreover, to qualify as perjury, the falsehood must be a knowing falsehood. Flake, 746 F.2d at 539. Unlike the witness in Basurto, the witness in question here has never admitted committing perjury, 497 F.2d at 784-86, and Foreman has failed otherwise to demonstrate that any falsehood in Deputy Mauldin's testimony was a knowing falsehood. See Flake, 746 F.2d at 539. Because the situation here differs in these important respects from that facing the court in Basurto, Basurto does not require us to dismiss the indictment.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.