Id. at 119 (citing Peyton v. Williams, 145 S.E.2d 147 (Va.1965); and Grace v. Peyton, 152 S.E.2d 292 (Va. 1967)). In Rivers v. Martin, 484 F.Supp. 162 (W.D. Va. 1980), the district court recognized that āthe Virginia habeas corpus statute was amended in 1968 to allow [a] petitioner to ā
Id. This Court will therefore resolve any doubts concerning the availability of state corrective processes against exhaustion. See Lukity v. Elo, 2000 WL 1769507, *4 (E.D. Mich. October 10, 2000); Rivers v. Martin, 484 F. Supp. 162, 165 (W.D. Va. 1980). Thus, the Court will dismiss the petition without prejudice to permit petitioner to exhaust available remedies in state court.
Given the inability to conclude that there is an absence of available state corrective procedures, the principles of federal-state comity dictated by the exhaustion doctrine compel this Court to defer to the State of Michigan to interpret its own postconviction statute. See Rivers v. Martin, 484 F. Supp. 162, 165 (W.D. Va. 1980). This Court will therefore resolve any doubts concerning the availability of state corrective processes against exhaustion.
It should be stated at the outset that the Fourteenth Amendment due process clause prohibits deliberate use of perjured testimony or falsified evidence by the prosecution, and that police knowledge of perjured testimony or falsified information is imputed to the prosecution. Rivers v. Martin, 484 F. Supp. 162, 164 (W.D.Va. 1980), and the case cited therein. However, mere conclusory allegations are not sufficient to make out a claim.
Other courts have found that the failure to exhaust a state statutory remedy constitutes failure to exhaust remedies. Rivers v. Martin, 484 F. Supp. 162 (W.D.Va. 1980). There is also Illinois authority suggesting that mandamus is available in situations similar to the case at bar as a remedy for claims of constitutional violations.
Curran v. State of Delaware, 259 F.2d 707, 713 (3d Cir.1958). Accord, United States v. Rosner, 516 F.2d 269 (2d Cir.1975); Smith v. State of Florida, 410 F.2d 1349 (5th Cir.1969); Rivers v. Martin, 484 F.Supp. 162 (W.D.Va.1980); Chamberlain v. Mantello, No. 95āCVā1050, 1996 WL 521062 (N.D.N.Y. Sept. 11, 1996) (unpublished judgment). (ii) Court Applied Wrong Standard of Materiality in Rejecting Edwards' Due Process Claim
Napue v. Illinois, 360 U.S. 264 ( 79 SC 1173, 3 L.Ed.2d 1217); Hysler v. Florida, 315 U.S. 411 ( 62 SC 688, 86 LE 932); Mooney v. Holohan, 294 U.S. 103 ( 55 SC 340, 79 LE 791). It is sufficient to show that police officers acting in behalf of the state in connection with the prosecution had knowledge of the perjured character of the testimony given by a witness for the state. See Pyle v. Kansas, 317 U.S. 213 ( 63 SC 177, 87 LE 214); Rivers v. Martin, 484 F. Supp. 162 (WD Va. 1980); Curran v. Delaware, 154 F. Supp. 27 (DC Del. 1957). It goes without saying that the allegedly perjured testimony was material ā Herndon was the state's star witness against appellant. Thus, appellant's amended motion for a new trial and the affidavits attached thereto sufficiently charged a deprivation of a right guaranteed by the U.S. Constitution. Pyle v. Kansas, supra; Rivers v. Martin, supra.