of murder the prosecution's case against parents we're left with shaky they had no physical evidence tying him to the crimes and for each of the two murder counts because the single i'm reliable eyewitness with serious credibility problem quiet the jury's doubts about a weak case they put a police officer al caress on the stand to testify that he had seen violence will let near the scene of each crime shortly before it occurred including with a weapon but the jury never heard that officer alferez was under investigation at the time trial for drug trafficking a crime for which he was later convicted because the prosecution in that returned that material impeachment evidence over to the defense i think  constitutional obligations under free versus maryland there is a reasonable probability that the result of the proceeding would have been different but do you know this flurry did the prosecutor you know i know that the government or the regarding me or develop what information was in fact known however we know that they did have enough credible information even as a people thirty six months earlier to a pretty f b i and healthy people to open a joint investigation into especially when his years of work as a confidential informant increased its credibility in the i think of the jurors and if that alone was enough to call for a new trial under brady and that it was unreasonable and or twenty to  confidential informant was impeached but they still i don't prejudice because they had revealed this information about his involvement in drug trafficking and here we have a police officer who was called to bolster the credibility of otherwise very peak eyewitnesses one of hearing what looks like a baseball bat which includes an argument the prosecutor suggested was the murder weapon used in count two that with never heard and the same is true for count one angela liner had also a very serious credibility the testimony that they heard and we reversed it came it indicates that prejudice it's easier to find in those cases because we know that the jury was having a hard time coming to a decision and that off that makes officer out presents testimony all was under investigation that he can it's true all the allegations he can it's true there is a less than fifty one percent chance that even one juror would have voted differently this is a police officer who is under investigation by the f b i in long beach police argument for williams good morning please the court deputy attorney general david williams for respondent petitioner has a very big very instrumental problem in this case and that's that he told the state court his lawyer actually knew that officer all chris was under investigation and if the state court is told that and i state papers petition the state court is required to accept it as true if defense counsel knew that officer  decision was unreasonable you have to look at what was actually presented to the state court and from what the state court had it was very reasonable for them to assume for them to assume that defense counsel knew about this investigation w petition it given given the procedural history of this case from from my own personal experience with looking at pro se petitions it looks like a petition where perhaps defense counsel who had been retained to file a petition began scene of the crimes around the time of the crimes happen it well the sheer fact that he's an officer a police officer who was able to corroborate some of the testimony  witness to the time that she witnessed the shooting was called into question and she said she remained at the scene but no other officer could attest to seeing her at the scene and the liquor store employee could not corroborate her time at the store so it's interesting and i understand what the issue is here is that enough for you to say that that easily you would have been able to make the case without an testimony you have to look at officer all present testimony and officer all present testimony was simply that petitioner was near the scene of the crime as to that offense that's what it was and there was plenty of other testimony in the petitioner would have been regularly no it's not the same thing but it is similar evidence it is similar evidence and certainly if you look at for instance with count two count two happened about thirty minutes before count three we know for a fact because petitioner isn't contesting it that he was near the scene of count two because he was caught thirty minutes later in the same vicinity committing count three and so i would say certainly as to that one officer elk resist testimony sorry it looks like you have a question certainly as to that count officer testimony as merely saying i saw him before but there's other testimony saying i saw him after it because he was caught after and so when you look at the when you look at that subsequent testimony that's far more compelling than even three very close to count to about thirty minutes later yes yes i'm talking about count one as to count one officer elk reza testimony i don't think it was even mentioned in closing as to count one that's how significant the prosecutor thought it was the jury was presented with all of the impeachment evidence as to the eyewitness for count one and yes the jury struggled with it but this is a question not of whether a jury could have come to the conclusion that officer this testimony made a difference but it's a question of whether the state court was unreasonable in saying that officer testimony didn't make a difference and for example if this had been a sufficiency of the evidence of kewl weather officer al caressed testified or not there would have been easily enough evidence to witness how to credibility problems but the jury was able to weigh those credible credibility problems and it took them some time but eventually they did w simply when you compare the fact that the only testimony about offense from officer alcoa's was that petitioner was near the scene i think that's very similar evidence to the fact that there was a gang a known gang hangout in that  area i would also just quickly turn to a point that judge korman made which is that we don't know what evidence could have been presented to impeach officer alcatraz at the time of trial petitioner hasn't pled what evidence could have been shown to impeach him and what we know he doesn't know you know well what we know is that officer alcatraz was under investigation at the time and what we know is that no no you know now what was investigation was at that well the f b i actually i believe conduct about investigation so it's it was a federal prosecution rather than a state prosecution so i'm i'm not actually sure that that portion of the investigation ever even made its way into any state investigators but we attribute all of that to see you do not or is there some authority that because it's a federal this occasion versus the state of the situation it was seemed like it was d the long beach police department who went to i and that they were investigating that joint are you saying that's not the case not at all your honor what i'm saying is that the long beach police department received a tip and then referred the case to the f b i and the i was never involved in petitioners prosecution and the question for a brady inquiry is whether they're part of the prosecution team i don't know that you can connect the f b i to the prosecution team in this case all of the all of the brady case law speaks in terms of a prosecution team and the f b i was not part of the prosecution against petitioner so you say that and i'm just curious so the prosecutor at the time of the trial did not know about the investigation i don't and i don't know that your honor you know i don't know either way you are numbered curious to find out i'm i'm not yes i don't know that that necessarily makes any difference to the outcome of this case though your honour's but you know you're just arguing right now that it might because it's a further investigation you know i'm i'm i'm not saying that i'm not saying that it might i'm saying in this case it's a hey vs petition everything turns on petitioners allegations petitioner alleged that he bet his defense counsel already you know at the time of trial and even now he hasn't alleged what that impeachment evidence could have been obviously it's a green just a prosecutor notice and even that there's an investigation going on and that we find out later and you know whether or not that might have had an impact on  this case here is what we're trying to determine and obviously it would it would have had some impact we just don't know right now we're trying to persuade those who insist that it would not have a significant that's the problem we don't know what the this is the been there was a some investigation and it seems to me no we have to know a little bit more in order to determine whether or not these there was a reasonable probability that the outcome would have been different if the jury told quote this i would i would agree with half of what you said your honor i would agree that we need to know what the this is in order to find prejudice however i would not agree that we need to know in order to resolve this case because the burden in this case is on petitioner if he doesn't specify what the this is he can't show prejudice  how is he supposed to know at this case at this point the case is over twenty years old a federal complaint was filed there are post conviction discovery steps that he could have taken especially since he was certainly for the past decade or so he has known about this investigation that there are plenty of post discovery steps that could have been taken since then he has not done and i'm and i'm simply saying i agree that if the prosecutor had known about this and not disclosed it that would be a big problem however in the context of a state habeas petition that's the state court was required to accept that the fence counsel knew about it the state court was required to never under direct versus abraham someone who is a reasonable probability that the outcome would have been different so we're back either way the test would be the same think the state court has a one sentence opinion sensually saying that there's no prejudice and that the test doesn't matter whether his lawyer knew about it and was precluded from using it or whether it is lawyer was and so i think that the stick the question in this case is simply it is not it is not whether the outcome could have been different it's not simply a brecht type test the question is whether the state court decision was unreasonable and in light of the relatively little testimony that officer al caress gave in light of the fact that we don't know what he would have been impeached upon because at this point all we know is that he was under investigation and the fact of an investigation alone would not have been admissible no more than the fact of an arrest along would have been admissible we don't know what the what the impeachment would have been and if we don't know what it would have been we don't know how bad it would have been for his credibility we don't we petitioner hasn't alleged how bad it would be such that the jury would have disbelieved and i'm and i'm simply saying that as a procedural matter that makes a big difference in i didn't i didn't want to ask the digits you made any effort summer did your client think it everest to try to find out what happened in that investigation what what the government would have known about the five month mark after it was honor i believe that it did it would have been once again officer alfred the reason that he was put on the stand was because he was a police officer who would come off as credible especially in light of before the nd crime occurred and that was emphasized by the prosecutor in closing arguments and he stated that he suggested that that was the murder weapon that he saw him go for the nd crime with the murder weapon so although he was also seen after the crime know before the crime and it's you know after the crime and i am almost out of time your honor and i just i just want to say also that this is not as your honour's know it's efficiency of the evidence heck that's a much higher standard than a reasonable