Whether the lower courts should fully decide whether the state knew or should have known that the testimony about Mr. LeBere's 'confession' was false

QUESTIONS PRESENTED This case presents a serious claim that an innocent man was wrongly convicted of murder based on perjury. Petitioner Kent LeBere was convicted based on circumstantial evidence, plus his jail podmate’s testimony that LeBere “confessed” to murder. But shortly after trial, the informant admitted he had lied; LeBere never confessed. Moreover, the lead detective on the case told the jury he corroborated the informant’s story—but in discovery on Mr. LeBere’s habeas petition, the detective admitted he actually had not investigated the story and never believed key parts of it. On Mr. LeBere’s Brady claim, the lower courts assumed the key testimony was false, and held that it was material. This left only the question whether the state knew it was false. But the lower courts denied habeas relief based solely on the district court’s finding that the police did not actively assist in concocting the perjury. The Tenth Circuit said that the lead detective’s admissions that he neither believed nor corroborated the “confession” story—despite telling the jury the opposite—were “new arguments” that would have required amending the habeas petition. The questions presented therefore are: 1. Whether the lower courts should fully decide whether the state knew or should have known that the testimony about Mr. LeBere’s “confession” was false. ii QUESTIONS PRESENTED—Continued 2. In the alternative, whether the Tenth Circuit improperly denied a certificate of appealability by concluding that Mr. LeBere’s appeal ultimately will fail, rather than considering—as this Court requires— whether it has at least debatable merit.