the state court decisions denying mr fernandez's brady and prosecutorial misconduct claims were in reasonable applications of clearly established federal law we therefore ask this court to grant mr fernandez's petition on each independent cl and grant mr fernandez a new trial starting with the brady claim the first apartment committed an egregious error when it applied the wrong standard for evaluating the materiality prong of mr fernandez's brady claim the state suppressed evidence that molino the lead investigating officer and mr fernandez this case was a corrupt drug dealer who was caught on tape negotiating the sale of a half kilo of cocaine to an undercover officer the state had this information before the end of mr fernandez his trial but did not disclose it until nine days after mr fernandez this trial well you're you're searching that and i grant you it's a viable argument but the person had been a drug dealer before making a cop on the very day of the conviction february because that's the day that he encountered the the trooper who made the arrest so it's not really possible to say that that that the state was sitting on this concealing it and get to prejudice that's a stronger argument but you need really to establish the offense in the first place and it is clear that the state did have this off this evidence in its possession before the end of trial were godless of the amount of time it took to review the evidence and also regardless of his skepticism that the state could of that there could have been allegations like this against for so many years without an arrest first united states v brooks and united states  our instructive on the point about the amount of time it took him to review the evidence in if the brady violation is triggered by information that the prosecution never reviewed because of shortness of time as an audition or because the state didn't think they would find anything if they look as in brooks then it is irrelevant how long it took eighty burmeister to decide that the evidence was reliable as soon as he was put on notice of its existence by the n y p d the brady obligation was triggered it cannot be that a prosecutor's responsibility under brady is greater in in relation to information that he never finds as in books or audit and then for information he knows about and can easily access and in addition on the point of  address the point about burmeister skepticism before he finished relating reviewing the audiotapes judge crocker snyder was incorrect when she found that the brady obligation was not triggered due of the defense and in this case that evidence that the state had access to was objective lee reliable and in fact it was so objective lee reliable that molina was arrested immediately after b finished reviewing the material without any further investigation or any confirmation and so from the moment the state was put on notice of that as the existence of the evidence by a reliable source by the n y p d i learned of it from the new york state troopers and not from an unreliable informant as and the case is that the state cites the brady obligation was triggered even putting aside whether this court credits the recant or whether the state court credits the recantations are not evidence that a police officer engaged in unrelated misconduct is exactly the kind of information that courts find to be material for example in arnold the macneil a case affirmed by the eleventh circuit the court found that evidence of unrelated misconduct by a police officer could certainly have introduced out into the minds of at least wonder and furthermore that i view witness identifications by witnesses that had interacted with that police officer could be called into question again because of unrelated misconduct by a police officer so even without looking to the were that they were told by the crooked officer you know here's a photograph or here's the guy you should pick out or things like that which would have been more credible  evidence against molino we have a better insight into what might have happened at trial if the state had disclosed this evidence prior to the end of trial so for example with the three  eyewitnesses with the three i can't sing i witnesses that the defense could have recalled each of those witnesses and in this particular case we know what they would have said as your honor pointed out they would have said that they identified mr fernandez because of pressure just that is that sufficient in a state would warrant reversal so if i understand your your question it's if recantation would that be enough to warrant reversal yes and that is exactly what the state court said and its opinion that the case was weak enough that it could rise or fall on the strength of just one eyewitness and had the defense been able to use the impeachment evidence against molino in the context of such a weak case it is clear that the couldn't there's a reasonable probability that this could have led to a different result and that is the standard it which this court needs which for brady materiality unfortunately the first department applied the wrong standard they held that there was no reasonable probability that mr fernandez would have been acquitted if the information had been disclosed in the standard stat is whether there is a reasonable probability of any different result including introducing doubt into the minds of just one juror and leading to a hung jury and we submit that that is exactly what it would have happened here if the state had fulfilled their obligations under brady and disclosed the information to mr fernandez the  l court also denied the claim because on the ground that even if the disclosure of the court could call had been made it would not have been material given the overwhelming evidence v bagley evaluating the materiality of evidence which was not disclosed is a difficult exercise but it is a retrospective exercise and that's why the standard is what what there was a reasonable probability of the state deprived us of the opportunity to know exactly what would have happened if mr fernandez had the information about molino but in this case we know what the witnesses would have said had they been asked the right questions but it's judge magistrate judge gorenstein pointed out i think it's critical to bring to the course attention that the petitioner decided no supreme court case law six trusting that the prosecution must pursue preliminary information on any particular that there was this this conviction i mean if your argument is correct then if if the state trooper who actually did the arrest had retired and moved to florida and they couldn't find that person then they'd never have to disclose that they never have to disclose the conviction because they would not have had the final absolute confirmation that this police officer was once a bad apple scheduled a meeting with the officers who had met with the state troopers that meeting occurred on february fifth at that time he asked to review any tapes and to meet with the undercover he met with the undercover the following day and then on the seventh that he the undercover didn't bring copies of that of the tapes that day so on the seventy received them he immediately reeled in that afternoon that evening and the following morning and he promptly ordered in leno's arrest so i again i think the were reasonable to allow the people a brief period of time in light of the lack of guidance from the supreme court again the appropriate timetable in these circumstances it's just as i understand it correct me if i'm wrong over two years after the actual event after the actual crime mr leno one of his colleagues go out at the direction of the prosecutor that trial is either ongoing or about to begin and they dig up two witnesses two new alleged eyewitnesses who they never had before one of them is mr canelo they do not show mr canela a photo array or a lineup or anything like that they just bring a right  court a few days later and according mr canelo they showed him a photograph and told them who to pick out but putting that aside they bring them in to court and to he is able to a den of five the guy sitting at the fence table as the defendant as the person he saw commit the crime he then recants he tells his wife that he perjured himself he tells the defense investigator he breaks down in tears with the defense investigator and ultimately he comes into court and  high line i've been feeling guilty about it ever since and the judge says oh i don't believe mr canela because quote he came across as someone who was trying too hard to be convincing and please please don't make any arguments now because you might be trying too hard to be convincing and i would have to discredit you and and then  the judge says he could not explain why he'd waited so long to come forward if people all the time come forward to admit there that they committed perjury  and that the court would expect him to notify the authorities rather than wait in silence none of that makes any sense to me to be frank well with due respect it makes sense to me and i think it can i  was testimony was incredible on its face in many respects and it was also contradicted by detective tab and again he said he was wracked with guilt for all this time yet he waited sixteen years after the shooting a thirteen years after the conviction to come forward again i think the judge found that there was no he had no motive to lie he was a bra and he wasn't seduced he had a good record true but but is simply asked to pick out the person in court well he gave a very solid identification at trial he saw the he saw the petition get out of the car she towards the building get back into the car  identification given in conjunction with the quality of the other very strong identifications his testimony dovetail with that of there is area cousins and mr medina who gave a very strong identification although he did not witness the shooting itself  that it's been well established now that fall that accurate eyewitness identifications are the single largest cause of wrongful convictions well that your honor is in a better position to answer that question and with this plot and i think importantly he way you know a vaguely talked about i felt pressure i felt for him but he never said what the police actually did to coerce him or persuade him to identify someone who is actually in very very risky what prosecutor of sound mind would do that other than one who knew or who prepared the witness to say that the person sitting on the right egg the prosecutor there is that that that that the policeman what was important if i may i'd like to go back and i think this is around and i'm worried about the prosecutor too because i can't understand why somebody would put somebody on the stand just  given in court identification without with with without any idea of whether the person can identify him i mean one nose is pretty much like another n e again i can just go back to judge allen's remarks that he having read the trial tester numerous times deemed that canalis testimony had the ear marks of someone who is telling the truth he's presided at the trial he presided that too for forty hearings i think his credibility determinations and entitle to a presumption of correctness and i'd just like to quickly given that i've very i'm going ahead yes thank you your honor i'd like to return to the materiality point because i can see that the court is perhaps somewhat troubled by the notion of when the brady obligation was triggered however on the materiality found as i've tried to impress with respect to other questions we had for rock solid identifications we had  were deemed incredible were incredible on their face and were contradicted by the witness for example can our said that the police showed him photographs he said a trial they had and we put on of the people put on detective thomas to say the police never showed him photographs he was caught in materiality point not only do we have the rock solid identifications of three eyewitnesses who is on the corner when he sees petitioner core drive by after the shooting his car is slowed in traffic he gets a very good look at a cliff gets a very good look at him because the from ten feet away points a gun out the car at a thirteen year old boy i submit that that would make a huge impression on anyone and putting aside the four eye witnesses we've got the testimony of the two cooperating witnesses who testified about m to to to execute the murder he gave them the gun they testified about one of them saw mart paying off the petitioner i think was twenty five hundred dollars after the murder had committed and i very briefly the state mentioned on the timing issue that this is just a case of unfortunate timing but the supreme court and us make it leo said that the state can put in place procedures to avoid bad timing issues just such as this and in this case burmeister did not follow the state's own procedures that were in place to avoid a mishap like this which led to a grave constitutional error he testified recantation sorry at the trial hearing that he had a policy that whenever he received allegations such as the ones that he heard about molino he would find out where the police officer was stationed he would see if that police officer was scheduled to testify and if he was he would call for an adjournment to investigate the allegations and decide if there was a problem or if there was brady material and in this case he didn't do that so this is not just a case of bad timing this is a brady violation you know the answer to my question that i put at the very end to your have sorry was to defense  that were had only been rounded up a few days before and i apologize i don't know if there was a request for a wait hearing on the two new witnesses i know there was no wait hearing on the two no witnesses  see if we can do that within a week yes your honor and of course cooperating with you have to say well courtney yes you very much thank you thank you thank you both we will reserve decision