from the United States District Court for the Eastern
District of Louisiana
WIENER, GRAVES, and HO, Circuit Judges.
C. HO, Circuit Judge
Louisiana jury found Albert Norman Pierre, Sr., guilty of
aggravated rape of a child under the age of thirteen. During
his trial, the child (C.C.) testified that she had not been
"sexually active, " other than Pierre's abuse.
Over a year later, C.C. informed authorities for the first
time that another adult molested her during the same period
of time that Pierre molested her.
subsequently sought post-conviction relief, arguing that C.C.
perjured herself at trial by denying that she was
"sexually active" other than Pierre's abuse.
The Louisiana Supreme Court denied Pierre's request.
Pierre then sought federal habeas relief.
has directed that federal courts may not grant habeas relief
unless the state court's decision was contrary to, or
involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United
States. 28 U.S.C. § 2254(d)(1). We have observed that
"clearly established Supreme Court precedent demands
proof that the prosecution made knowing use of
perjured testimony" to establish a constitutional
violation. Kinsel v. Cain, 647 F.3d 265, 272 &
n.26 (5th Cir. 2011) (emphasis added). And the district court
found "no evidence to suggest that the State (or anyone
whose knowledge was imputable to the State) knew that C.C.
was offering false testimony at trial." Yet the district
court granted habeas relief anyway, in a three-page order
devoid of Supreme Court and Fifth Circuit precedent. We
lived with her grandmother and Pierre, her grandmother's
boyfriend. When she was twelve, C.C. told her parents that
Pierre had been molesting her for six years. C.C.'s
parents immediately notified authorities. Pierre was
subsequently indicted for aggravated rape of a female
juvenile under thirteen, in violation of Louisiana Revised
Statute § 14.42A(4).
trial, C.C. described an occasion when Pierre took her for a
medical exam to determine whether she had been sexually
active. According to C.C., the nurse practitioner declined to
conduct a physical exam based on C.C.'s representation
that she was not sexually active. This testimony prompted the
prosecutor to inquire whether C.C. had been "sexually
active other than the things that [Pierre] had done to
you." C.C. replied "No."
found Pierre guilty, and the court sentenced him to life
imprisonment at hard labor without parole, probation, or
suspension of sentence. His conviction and sentence were
affirmed on direct appeal. State v. Pierre, No. 2009
KA 0454, 2009 WL 3162246, at *1-3 (La. Ct. App. Sept. 11,
2009), review denied 31 So.3d 1054 (La. 2010).
year later, C.C. revealed that Michael Percle-the son-in-law
of C.C.'s legal guardian-had also molested her during the
same period of time as Pierre's abuse. As the Louisiana
Supreme Court explained:
C.C. testified that she did not reveal the abuse at the hands
of Percle either before or during [Pierre's] trial,
because she was afraid that if she did so, she would be
removed from the home and deprived of her 'nanny, '
as in fact happened after [she came forward]. C.C. testified
that she decided to come forward when her nieces, ages three
and six, began visiting the Percle home and she became afraid
that what had happened to her would happen to them.
State v. Pierre, 125 So.3d 403, 407 (La. 2013). The
State investigated C.C.'s allegations, but declined to
months later, the State informed Pierre's counsel that
C.C. had made allegations against Percle. Pierre then sought
post-conviction relief, arguing that he was denied due
process because C.C. "recently recanted her
testimony." The state trial court granted relief, ruling
that Pierre "made a bona fide claim of actual
innocence." The court of appeals affirmed. But a dissent
emphasized that C.C. "never recanted her testimony
regarding [Pierre] raping her." State v.
Pierre, No. 2013 KW 0150, 2013 WL 12124006, at *1 (La.
Ct. App. Apr. 5, 2013) (Crain, J., dissenting). As the
dissent explained: "The victim's false statement
that she was abused by no one else does not require a
conclusion that the defendant did not rape her."
Louisiana Supreme Court reinstated Pierre's conviction
and sentence. Before that court, Pierre conceded that he
could not satisfy the actual-innocence standard. He instead
argued that the State's 16-month delay in disclosing
C.C.'s allegations against Percle deprived him of due
process. Pierre, 125 So.3d at 408-09. The court
rejected Pierre's argument on prejudice grounds-by the
time C.C. revealed Percle's abuse, the time for Pierre to
file a new trial motion had already expired. Id. at
411 ("The passage of time, and not prosecutor Rhodes,
thus dictated that [Pierre] cast his lot with the
extraordinarily high [actual-innocence] standard as a basis
for overturning his conviction and sentence in state
course of resolving this claim, the court also made clear
that no state actor knew that C.C.'s trial testimony was
false at the time of trial. Id. at 406, 410 (state
unaware of "C.C.'s allegations against Michael
Percle" before "November 2009").
February 2016, Pierre sought federal habeas relief arguing,
as relevant here, that his conviction violated due process
because C.C. had testified falsely. The magistrate judge
rejected Pierre's claims under both Brady v.
Maryland, 373 U.S. 83 (1963), and Napue v.
Illinois, 360 U.S. 264 (1959)-as well as his argument
that his conviction violated a freestanding due-process right
to a fundamentally fair trial-because "the prosecution
did not know and could not have known at the time of trial
that there was anything false about C.C.'s
testimony." Pierre v. Vannoy, No. 16-1336, 2016
WL 9024952, at *8-9, *10-18 (E.D. La. Oct. 31, 2016). As the
magistrate judge explained, "the majority of federal
circuit courts, including significantly the Fifth
Circuit . . . require a petitioner to prove governmental
knowledge of the false testimony, " and there is no
Supreme Court precedent to the contrary. Id. at
*14-17 ("[W]hen there is no Supreme Court precedent to
control a legal issue raised by a habeas petitioner, the
state court's decision cannot be contrary to, or an
unreasonable application of, clearly established federal law,
and no federal habeas relief is warranted.").
Accordingly, the magistrate judge recommended denying relief.
district court adopted the magistrate judge's report and
recommendation "in all respects"-except for its
conclusion. Pierre v. Vannoy, No. 16-1336, 2017 WL
2267195, at *1-2 (E.D. La. May 23, 2017). Despite the
undisputed fact that the State lacked knowledge of the
falsity, the district court nevertheless granted the
writ-ignoring sub ...