When newly discovered evidence is the ground for a section 2255 motion, the district court must apply a substantive standard that includes five prerequisites: (1) the evidence must have been discovered after the trial; (2) the failure to discover the evidence must not be attributable to a lack of diligence on the part of the petitioner; (3) the evidence must not be merely cumulative or impeaching; (4) the evidence must be material; and, (5) the evidence must be likely to produce an acquittal if a new trial is granted. Lindhorst v. United States, 658 F.2d 598, 602 (8th Cir. 1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 309 (1982). A modified test is applied, however, when the newly discovered evidence involves a claim of perjury by prosecution witnesses.

The nondisclosure of Brady materials is cognizable in a section 2255 motion. Lindhorst v. United States, 658 F.2d 598, 601 n. 3 (8th Cir. 1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982); Houser v. United States, 508 F.2d 509, 517-18 (8th Cir. 1974). Under Brady "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution."

At any time that such evidence appears, the trial court sua sponte must order an evidentiary hearing on the competency issue.Lindhorst v. United States, 658 F.2d 598, 607 (8th Cir. 1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 309 (1982) (quoting Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972)). See Drope v. Missouri, supra, 420 U.S. at 172-73, 180, 95 S.Ct. at 904, 908; Pate v. Robinson, 383 U.S. 375, 385, 387, 86 S.Ct. 836, 842, 843, 15 L.Ed.2d 815 (1966).

Id., 373 U.S. at 87, 83 S.Ct. at 1196-97. Suppression is nondisclosure, Lindhorst v. U.S., 658 F.2d 598, 605 n. 8 (8th Cir. 1981), and it matters not whether the prosecutor acted in good faith rather than in bad faith. Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. at 1196.

And they place Marcy on the wrong side of an eight-to-two circuit split. See Smith, 358 F.2d at 684 (dismissing habeas petition because it failed to "allege any facts to show the [g]overnment knowingly used false testimony at the trial"); United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980) ("[F]or perjury by a witness to constitute grounds for relief appellant would have to show that the [g]overnment knowingly used the perjured testimony."); Burks v. Egeler, 512 F.2d 221, 226 (6th Cir. 1975) ("A requirement of state involvement [is] a prerequisite to finding constitutional error...."); United States ex rel. Burnett v. Illinois, 619 F.2d 668, 674 (7th Cir. 1980) ("It is the knowing and intentional use of [perjured] testimony by the prosecuting authorities that is a denial of due process of law.") (citation omitted); Lindhorst v. United States, 658 F.2d 598, 601 (8th Cir. 1981) (dismissing habeas petition because "appellant failed to establish the government's knowing use of the perjured testimony"); Graham v. Wilson, 828 F.2d 656, 659 (10th Cir. 1987) ("In our habeas corpus consideration of the introduction of false or mistaken testimony, the question of error turns not on the witness' knowledge of falsity, but on the government's knowledge."); Smith v. Wainwright, 741 F.2d 1248, 1257 (11th Cir. 1984) (requiring evidence "that the prosecutor or the police officers knew that the testimony of one of the [witnesses] was false"); Hodge v. Huff, 140 F.2d 686, 689 (D.C. Cir. 1944) (rejecting perjury argument because "[t]here is nothing in the record to support or even to suggest bad motive, or misconduct upon the part of the prosecution").

Regardless, the fact that Hopper's communication style—"conversational [ ], rational[ ], and sometimes repetitive[ ]—did not "mesh" well with Davis is insufficient to find ineffective assistance of counsel. See Lindhorst v. United States , 658 F.2d 598, 603 (8th Cir. 1981) (denying 2255 motion, acknowledging that while "the attorney could have explained [the case] in greater detail," "the failure to more fully discuss the case does not constitute a breach of the duty to act as a reasonably competent attorney").Evaluating Hopper's "conduct ... from [his] perspective at the time," Strickland , 466 U.S. at 689, 104 S.Ct. 2052, Davis cannot meet his "heavy burden" of showing that Hopper was ineffective in explaining conspiracy law.

“When newly discovered evidence is the ground for a § 2255 motion, the district court should apply the same substantive test which governs a motion for a new trial under Fed.R.Crim.P. 33 premised upon the same ground.” Lindhorst v. United States, 658 F.2d 598, 602 (8th Cir.1981) (quotation omitted); seeFed.R.Crim.P. 33(a) (“Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.”). “[W]here an affidavit is not available until after trial, if the factual basis for the testimony in the affidavit existed before trial, then it is not newly discovered evidence.” United States v. Bell, 761 F.3d 900, 911 (8th Cir.2014).

A defendant is entitled to a new trial based on newly discovered evidence only if he can show (1) that the evidence was not discovered until after the trial; (2) that due diligence would not have revealed the evidence; (3) that the evidence is not merely cumulative or impeaching; (4) that the evidence is material; and (5) that the evidence is such as to be likely to lead to acquittal. United States v. Zuazo, 243 F.3d 428, 431 (8th Cir. 2001) (citing Lindhorst v. United States, 658 F.2d 598, 602 (8th Cir. 1981)). Because the new evidence Fellers points to is merely impeachment evidence, the district court did not abuse its discretion in denying the motion.

A defendant is entitled to a new trial based on newly discovered evidence only if he can show (1) that the evidence was not discovered until after the trial; (2) that due diligence would not have revealed the evidence; (3) that the evidence is not merely cumulative or impeaching; (4) that the evidence is material; and (5) that the evidence is such as to be likely to lead to acquittal. Lindhorst v. United States, 658 F.2d 598, 602 (8th Cir. 1981); United States v. Pope, 415 F.2d 685, 691 (8th Cir. 1969). Because Salaiza Zuazo has failed to demonstrate likelihood of acquittal, we conclude that the district court did not err in denying his motion.

"[A] medical opinion on the mental competency of an accused is usually persuasive evidence on the question of whether a sufficient doubt exists." Griffin, 935 F.2d at 930; see also Lindhorst v. United States, 658 F.2d 598, 607-08 (8th Cir. 1981) (holding that no new trial was required where medical reports indicated the defendant was competent and there was no contemporary evidence in conflict with the medical finding of competency), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 309 (1982). Long Crow contends, however, that his demeanor in the substitution of counsel hearing and at trial should have given the district court new doubt as to his competency and the continuing validity of Dr. Bickart's opinion.