during the sausage trial and the state presented alan again as a gang member after the sell side of trial in this case there was only alan's testimony linking cell offense there was no physical evidence there were no other witnesses there was only one thing that linked self sado to this offense and that was the testimony of allen and it was important that the state suppressed his gang membership suppress the cash payments and i'm sorry don't mean to interrupt we know it's important because  noted in karl's and shelton we can look at the closing arguments of the prosecutor and look at how they argued and what they argued was that allen was a community hero that he was someone who stood up to gangs he was a he was a little league football coach and because of his standing talk to gay members he lost his home he was never able to go back to that little league football team he couldn't go back to his neighborhood council may i ask you that i understand you correctly to say that the government first presented alan as a non gang member and the imposition in him as a gang member no you  they first presented allen as a gang member before the south side of trial ok who well my concern is that you're saying that testimony was presented at trial so you're not saying that the cottony was doing trial but the testimony was inconsistent with something that had been done previously yes your honor what i'm trying to point out is that the state before th a trial presented allan is a gang member in what in what fashion in a document is on your phone to a document that identified him as a gang member yes your honor and also first off they presented him as a gang member in a police report in which he was presented as a documented known gang member and they also used that same game membership to violate jerry self sado which is the state had already used alan's gang membership to put someone into prison for twelve months they used it to put jerry into prison for twelve months then during the cell site a trial they presented him as a disinterested civilian witness as opposed to someone who was a gang member who was connected with the world and then after the self trial in the other son larry alan was forced to admit that he himself had claimed gang membership i believe he said that on multiple occasions and not only did alan false testimony that you are relying upon for your argument the principal testimony is alan's testimony that he was not a gang member  testimony further that he had never played that he had never said he was a gang member and that testimony of detective ponce de leon that allen was not a gang member and also  there enters into it that detective nava said that she had never given cash to mr allen when in fact she had given cash in the  amount of i believe around four thousand seven hundred dollars to mr allen and when all of these are taken together these constitute a pool of violation and it is the supreme court recently said in where he versus king even if the jury could have convicted if there's no confidence that the jury would have convicted then that there to do things that i think show that it's very it's still very material the first is that while mesa testified that allen was like for service i don't know was there any evidence that with due diligence cortinas would not have been reducible your honor in a poor analysis due diligence is not relevant because the only thing that matters is the not we look at the prosecutor only on the brady analysis to deal with this is not required and those questions we were unable to answer at the trial level because the state court are we supposed to decide the case in accordance with the record developed by the state court isn't that what the supreme court has told us yes your honor but as the court noted in brum filt and taylor versus maddox and versus miller where the state court has not followed its own procedures or has made decisions which if it had followed its own procedures under the two  procedure is it that you are asserting that california courts did not follow the california courts have a procedure that we assume under brimfield analysis is that acquit and that is that you have to a stream of facts your case and for that case the state court assumes that everything you put in your petition that is substantiated is true and in this case the st they had they were completely side to the record they've were substantiated those arguments should've been taken a prima fascia face value and because they were not then under broom filt that's either  an unreasonable application of federal law because again they didn't follow their own procedures and i think you think you will hear from the s please the court judge and deputy attorney general or respond to the question of whether victor allen was a gang member which is the issue underpinning petitioners at brady and ineffective assistance of counsel claims was just not that important in this case therefore evidence relating to victor allen's gang membership was not material for that reason and for several other reasons the district court correctly concluded that the california court of appeal did not unreasonably apply clearly established federal law when it rejected petitioners claims but i'm sure response to opposing counsel zisha in that materiality is not and element when you're doing a only the prosecution's conduct what's your response to that well materiality is definitely one of the elements of a claim there are three elements one the evidence has to be actually false to the prosecution has to know or should have known that the evidence was actually false and three it has to be material to you can see the first two elements no i i do not with respect to the first element of the california court of appeal could reasonably concluded that the testimony that allen was not a gang member was not actually false allen did testify at petitioners trial that he was not a gang member and we do have detective cortinas his testimony recollection as from lives there's also united states to be croft that says that the fact a witness may have made an earlier inconsistent statement or that other witnesses have been looking recollections of events do not that the testimony after the trial was false that's united states beecroft and i would submit that that is the strongest case substantiated that point but i think even more importantly in this whole analysis can be short circuited is if we go to materiality and hear the evidence or the california court of appeal could have reasonably concluded that alan's gang membership was just not material in that case petitioner throughout his briefing has tried to come up with a rationale as to why it's material but his arguments are are not that persuasive first claims that the prosecution used a community hero narrative and that evidence that victor allen was a gang member would have spoiled that narrative but that's not necessarily the case it would be just as compelling to say that victor allen heroically came forth named a member of his own gang as martinez's killer at great personal risk to himself there was evidence that he knew what could happen to snitches and gangs that would have been a powerful argument but even more than one  people many of whom were on street locos gang members they testify of the trial at well that would have been the crime that larry self saito committed and there's no evidence in the record as to who testified in that case  but with respect to the prosecutor's argument here it was not a big part of the prosecution's case that victor allen was not a gang member it was barely a part of the case at all and in fact in the prosecutor's rebuttal argument after defense counsel had argued that victor allen was a gang member the first thing the prosecutor said in his rebuttal argument was you know maybe victor alley is a bad guy maybe he is a gang member but it doesn't matter what matters is he was a witness to petitioner son killing martinez that's what matters so the prosecutor himself disavowed any notion that victor allen's gang membership or lack thereof was was important in this case and even more fundamentally this case is unusual in that allen's gang membership was not indicative of any prototypical form of bias gang member i e petitioner as his killer or as his attacker but there are numerous problems with that theory of materiality the first is that there is no evidence in the record that the tru victor allen was an orange street loco skank number but even that moreover it wouldn't make sense for victor allen to name petitioner as if he was trying to protect the gang why would he name the completely innocent father at least two of the game's members as his attacker if he was trying to protect the gang you know common sense would indicate that doing something like that would only make the gang more angry at him and as has been mentioned this was the case this was not a case where there was no evidence of victor allen's gang that was put forth there was christopher mason who testified and unequivocally that victor allen was a gang member so the jury was not denied any knowledge victor allen could have been a gang member tells me ask you what case are you relying upon for your quoting it says a defendant must show one that the testimony was actually false two that the government knew or should have known that it was false and three that the testimony was material unquote  and i think it is fairly clearly established that those are the elements of a claim moving on to petitioners brady claim there's no evidence that the evidence relating to allen's gang membership was not disclosed there was no declaration from petitioner from the trumpet issues trial counsel or the prosecutor stating what was disclosed and what was not disclosed the only evidence in the record is that there was discovery given to defense counsel and the defense counsel to mentally lost the file you know speculation that evidence was not provided is insufficient to establish non disclosure and for the same reasons that the gang membership evidence was not material in than a poorly and brady contexts it was also not prejudicial in the strickland context what cited to the strickland case the pages that use the word reasonable probability in the court of appeal also cited to a california case that also uses the reasonable probability language so when we're discussing a case under the age  i think we have to give the state court the benefit of the doubt that it does know the political standards and so deference and it's appropriate here and for those reasons respondent would rebuttal thank you honor i would like to just clarify that i didn't mean to say that materiality was not necessary in a pool claim the question was due diligence and i was saying to diligence is not necessary i thought you said materiality that if i did so your honor that was a mistake on my part i was talking about the diligence ok so if the if we agree with the state that the information sought was not material you lose correct y others also may be may be destroyed maybe maybe thank your honor and also the narrative allowed the prosecutor to spend one sentence whereas in his closing arguments he spent eight paragraphs