F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

S T E P H E N D. C O M S T O C K , Petitioner-Appellant

,

v

.

S T E F A N I E H U M P H R

I E S ; N E V

A D A A T T O R N E Y G E N E R A L , Respondents-Appellees

. N o. 14-15311

D.C. No. 3:10-cv-00147- L RH-W GC

OPI NI ON

A ppeal from the United States District Court for the District of Nevada L arry R. Hicks, District J udg e, Presiding

Arg ued and Submitted March 11, 2015—San F rancisco, California

F iled May

12, 2015

B efore: Marsha S. B erz o n, J ay S. B y bee, and J ohn B . Owens, Circuit J udg es.

Opinion by

J udg e OwensC O M S T O C K V

. H U M P H R I E S 2

SUMMARY *

Habeas Corpus

The panel reversed the district court’s judg ment deny ing Stephen Comstock’s habeas corpus p etition challeng ing his Nevada conviction for possessing stolen p r operty

— a ring commemorating Randy Street’s 1991-1992 national college wrestling championship.

The panel held that Comst o c k i s entitled to relief under Brady v. Maryland based on the prosecution’s failure to disclose that, prior to trial, Street told the prosecutor and the investig ating d etective that the r ing mig ht have b e e n lost outside, not stolen from his apartment, just as C o m s t o ck’s lawy er had arg

ued to the jury

. The panel held that Street’s r ecollections were favorable
to Comstock in that they impeached the credibility o f Street’s tria l testimony a s to how h e handled his ring

, and more importantly

, affirmatively cast serious doubt on whether there

was a crime in the first place. T h e p an e l a lso held that the recollections were suppressed. The panel concluded that the suppression was prejudicial because had the information been disclos e d

, t h ere is at least a reasonable probability that the
outcome of the trial would have been d i f f e rent. The panel held the state co u r t ’ s c ontrary conclusion was an unreasonable application of B rady and its prog e ny

.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C O M S T O C K V

. H U M P H R I E S 3

The p anel instructed that on r e mand the writ o f h abeas

c o r p us b e g ranted, setting a side Comstock’s conviction a n d sentence, and that Com stock b e released from probationary custody unle s s t h e State notifies the d istrict court within 30 day s that it intends to retry him, a nd commences retrial within 90 day s.

COUNSEL

Ry an Norwood (arg

u e d ), A ssistant F ederal Public Defender; Rene Valladares, F ederal Public Defender, L a s Veg as, Nevada, for Petitioner-Appellant.

Victor-Hug o Schulz e , I I (arg ued), Senior Deputy Attorney General; Catherine Cortez Masto, Attorney General, Office of the Attorney General of Nevada, L as Veg a s , Nevada, for Respondents-Appellees.

OP INION

OW ENS, Circuit J udg e:

I n March 2 004, a Nevada jury found Stephen Comstock
g uilty of possessing stolen p roperty —a ring commemorating Randy Street’s 1991–1992 national college wrestling championship. The State’s theory at trial was that Comstock

or Danny Carter, a known b urg lar, stole the ring from Street’s apartment, and then Comstock pawned it. Comstock’s trial counsel arg ued that the ring was n ot stolen, but found outside Street’s apartment, whe re S t r eet likely had lost it. The jury rejected that defense.C O M S T O C K V

. H U M P H R I E S 4

This seeming ly trivial case had trag ic re sults: Comstock received a 10–25 y e ar sentence under N e vada’s h abitual offender statute 1 even thoug h the “victim” of this crime, Randy Street, h ad serious d oubts about whether his ring was actually stolen. I n a pre-sen t e n c ing statement, Street wrote that, p r ior to trial, he told the prosecutor and the investig ating detective that he remembered a time he had taken the ring off outside his apartment, placing it either on the g round or on an air conditioner, and did not recall putting it back on, meaning that the ringmig ht have been lost outside, not stolen, just a s Comstock’s lawy er had a r g u ed to the jury

. Yet n e i ther the prosecutor nor the detective told Comstock’s lawy er this crucial fact.

W e recog niz e the immense challeng e a habeas p etitioner fa c e s w hen making claims under Brady v. Maryland

, 373 U.S. 83 (1963), and that our court routinely rejects such
arg uments. B u t this is no routine case. The t r o u b l ing a nd unique circumstances here compel us to g rant Comstock the relief that he seeks, albeit ten y ears too late.

I. F ACTS

A. The Investigation

Detective Re ed Thomas of the Reno Police Department routinely reviewed transact i o ns at local pawn shops for

1 A lth o u g h Co m sto ck is cu rren tly o n paro le, h e “ w as in carcerated

. . . at th e tim e th e p etitio n w as f ile d

, w h ich is all th e ‘ in cu sto d y ’ p ro v isio n of 2 8 U.S.C. § 22 5 4 req u ires.” Sp en cer v. Kemn a , 5 2 3 U.S. 1
, 7 (1 9 9 8 ). In

an y case, perso n s o n p aro le are also “ in cu sto d y ” f o r p u rp o ses o f § 2 2 5 4

. Jo n es v. Cu n nin g h a m , 3 7 1 U.S. 2 3 6
, 2 4 3 (1 9 6 3 ). Co m sto ck ’ s paro le
statu s also su f

f ice s a s a co n crete in

j u ry u n der A rticle III, an d so , h is
p etitio n is n o t m o o t. S

pen cer , 5 2 3 U.S. at 7

.C O M S T O C K V

. H U M P H R I E S 5

“unusual property

. ” I n Aug ust 2003, something caug ht his
ey e: a colle gi ate championship wrestling ring with some

e n g r aving s—’91–’9 2
, N a

t i o n a l C h a m p i o n , N o r t h e r n M o n t a n a Colleg e, 150, and Street. Detective Thomas tracked down the ring ’s owner, Reno resident Randy Street. 2 Street thoug ht the ring was inside its usual place—a seashell in his ap a r t m e n t

. Thomas informed him that, in fact, the r ing had been sold to a local pawn shop.

Th e p a wn ticket bore the name of Stephen Comstock, whom T homas was monitoring under a repeat offender
prog r am. Surveill a n c e v ideo c onfirmed that Comstock h ad
p a w ned the r ing

. Comstock lived near Street and d i d maintenance work at Street’s apartment complex

, w hich h ad suffered a series of recent burg laries.

Thomas and his colleag ues questioned Coms t o c k at the police station. Comstock initially said t h a t he could not remember if he h ad in fact pawned Stree t ’ s ring

, or merely h a d p lanned to do so. W hen pressed, however, Comstock admitted that he had p awned the ring

, and he claimed that he had done so for his friend Danny Car t er , i n e x chang e for a carton o f cig arettes. Comstock said that Carter lacked

2 Street w as an o u tstan d in g w restler, w in n in g th e Mo n tan a h ig h sch oo l
st a t e ch am

p io n sh ip th ree tim es. He receiv ed a co lleg iate w restlin g sch o larsh ip t o a t t e n d t

h e Un iv ersity o f Neb rask a an d later tran sf erred to Mo n tan a State Un iv ersity No rth ern , w h ere in 1 99 1

– 1 9 9 2
, h e w e n t 2 3

– 0

an d led h is team to th e NA IA n atio n al ch am p io n sh ip

. Kn o w

n f or h is

“ h u g e h eart,” h e p assed aw ay in 2 01 2 at th e ag e o f 4 2

. S ee Ra n dy S treet, 4 2
, Mo n t. Stan dard (J u ly 9
, 20 1 2
, 1 2 :0 0 A M), h ttp ://m tstan d ard .co m

/

n e w s /lo cal/o b itu aries/ran d y

- street/a r t i c l e

_ e 7 7 b 8 6 3 e -c 9 7 1 -1 1 e 1 -9 2 d 9 -0 0 1 9 b b 2 9 6 3 f

4 .h tm l; MS U-No r th ern NAIA Na tio n a l Ch a mp io n s , Mo n t. St. Un i v

. N. A th l etics, h

t t p : / / w w w

. m s u n

. e d u / a t h l e t i c s / w r e s t l e / n atlch am p s.h tm (last v isited

Mar. 2 6 , 2 0 1 5 ).C O M S T O C K V

. H U M P H R I E S 6

identification, so he could n o t p a wn the ring himself. Althoug h Comstock initially stated that h e suspected the ring

w a s stolen, as Carter was a known burg lar, he t h e n backtracked and said that Carter c laimed the ring belong ed to Carter’s father. The initials “D.C.” were scratched lig h t ly inside the ring

.

B. The Trial

An i ndictment charg ed Comstock with knowing ly possessing stolen property in violation of section 205.275 o f the Nevada Revised Statutes. The indictment charg ed that the property was “obtained by means of larceny .” A t Comstock’s trial, in March 2004, th e State arg ued that the ring was “clearly stolen fr o m [ Street’s] apartment,” either b y Comstock or the serial b urg lar Carter, and that Comstock knew or should have k

nown that the ring was stolen when he pawned it.

Street testified for the prosecution about h i s cherished ring

. He said that he had never loaned the r ing to any one, it never fell off accidentally

, and he only wore it once or twice

eac h month. Althoug h h e h ad misplaced it inside his apartment, he did not recall ever losing it outside. W h en Detective Thomas called and asked about the ring

, Street did
not k n o w i t was missing

. He thoug ht it was in its usual place—inside a seashell in his living room

— and he remembered seeing it there about two weeks before the call. He also testified that Comstock, as the maintenance worker, had been in the apartment previously

.

Comstock called Sharon T a y lor, his ex -g irlfriend and the housekeeper at Street’s apartment complex

, as a witness. She testified that she found the ring in the flower bed outside theC O M S T O C K V

. H U M P H R I E S 7

c o m plex ’s laundry room, and broug ht it into her apartment

. According to Tay lor, Carter visite d h e r apartment while the ring was inside, and she let him take it. Tay lor acknowledg ed
t h a t she had dated Comstock a nd that they broke up sev e ra l months before she found the ring

.

Comstock also c alled h i s co-worker Perry Harring to testify

. Harring said that Comstock had asked him for a ride

so that he could pawn a ring for Carter. Harring accompanied Comstock to the pawn shop, a n d a lso drove Comstock to deliver the proceeds to Carter.

F inally

, Comstock tri e d t o call Carter to the stand, but Carter’s a ttorney w a s u navailable, and Carter wished to consult with h im before testify ing. T h ereafter, Comstock decided not to call Carter, and instead, the State called him a s its rebuttal witness. He testified briefly

, stat i n g that he h ad never seen the ring

.

C. Closing Argum e nts

The parties ag reed that Comstock had pawned the ring but disag reed as to whether the ring ha d b e e n stolen. Rely ing heavily on the fact that Street cherished and safeg uarded the ring

, the prosecutor arg ued that Street never would have lost it: “That ring was imp ortant to him and he knew ex actly where it w as.

. . . He didn’t lose it, it was stolen.” Aft e r defense counsel arg ued that perhaps the ring was simply lost outside (as Tay lor testified), the prosecutor returned to Street’s testimony : “He ke e p s i t in a seashell o r he wears it. He would never lose any thing with that sig nificant o f value.

. . . I t was clearly stolen from his apartment.” The jury returned a verdict of g

uilty

.C O M S T O C K V

. H U M P H R I E S 8

D. Sentencing

As part of the sentencing process, Street ( t he alleg ed victim) submitted a han d

- w ritten v ictim impact statement. Rather than ex plain h ow the crime impacted him, he instead

ex p ressed g rave concern about whether there had been any crime at all. Street wrote:

I am not convinced that my rin g w a s stolen. T o h ave a clear conscience in this matter, I h ave to bring u

p the possibility that I may have placed m y r i ng on the g round while

o u t s i d e m y a p a r t m e n t w a s h i n g m y motorcy cle. T he ring is larg e & [ ]I can remember a time prior to the r ing turning up missing that I took it off for fear of scratching the paint or chrome. I placed it either on the
g round or on the a ir conditioner outside & I don’t remember putting it back on. The defens e a ttorney kept asking if I may have dropped it o ut of [my ] pants p ock e t while I did laundry

. I volunteered this info to Detective Reed [ Thomas] and Prosecutor Erickson but it never c a me up @ trial. I never realiz e d my ring was even missing until Detective Reed [Thomas] called & said he found i t i n [ t h e] pawn shop. I ’d hate to see this g entleman sentenced for possession o f stolen prope r ty if it was out of my ig norance of misplacing it. Please take this into consideration. He’s p r o b ably served enoug h time for not asking nearby tenants if they were missing the ring . I don’t believe my apt. was broken into if all they

stole was a ring

.C O M S T O C K V

. H U M P H R I E S 9

Street concluded his statement with a note, marked w ith a larg e asterisk for emphasis: “Please make sure that the judg e reads this!”

E. New Trial Motion

Comstock moved for a new trial. He arg ued that Street’s
statement consti t u t e d newly discovered evidence and that it revealed t h a t the State had failed to disclose favorable evidence in violation of Brady v. Maryland

, 373 U.S. 83 (1963). I n its opposition brief (but without a s u p p orting declaration or other corroborating ex hibit), the State asserted that, p r ior to trial, when Street was “pressed by the State as to whether it was possible he lost the ring ,” he paused and then responded that “ anything is possible ,” and it was “ possible he could have taken off the ring w hile workin g o n his

m o torcy c le, but in all reality

, that would not have happe n e d since the ring was so important to him and, further, that it did
not happen.” W ithout holding a n evidentia r y h earing to determine what Street actually said, th e trial court denied Comstock’s new trial motion in a one-sentence order. The Nevada Supreme Court a f firmed, concluding that t h ere was

no new evidence warranting a n ew trial and there had been no Brady violation. B ecause the Nevada Supreme Court rejected Comstock’s Brady claim on the merits, it is e x h austed for habeas purposes. See 28 U.S.C. § 2254(b)(1)(A); Chambers v. McDaniel , 549 F .3d 1191, 1195 (9th Cir. 2008).

The district court denied Comstock’s habeas p e tition but
g ranted a certificate of a

pp e a l ability on Comstock’s Brady claim. We have jurisdiction to review that cla i m u n d e r 28 U.S.C. § 2253.C O M S T O C K V

. H U M P H R I E S 10

II. STANDARD OF REVIEW

W e review de novo a district court’s decision to deny a habeas petition. Clabourne v

. Ryan
, 7 45 F .3d 362, 370 (9th C i r

. 2014). Under the Antiterrorism and E ffective De a t h Penalty A ct of 1996, we m ay g rant habeas relief only if the
state court adjudication was contrary to, or an u n reasonable application of, clearly e stablished federal law, as determined by the United States Supreme Court, or resulted in a decision that w as based on a

n unreasonable determination of the facts. 28 U.S.C. § 2254(d). W hen apply ing t h i s standard, we review the last reasoned state c ourt d ecision. Clabourne

, 745 F .3d at 371.

III. DISCUSSION

A. Legal F ram ew ork

I n Brady v

. Maryland

, the Supreme Court held th at “the suppression by the prosecution of evid e nce favorable to an accused upon request violates due process where the evidence is material either to g uilt o r to punishment, irrespective of the
g ood faith or bad faith of t he p rosecution.” 373 U.S. 83, 87 (1963). There is n o disput e t h at Brady constitutes clearly established f

ederal law for purpo s e s of AEDPA. See, e.g. , Amado v. Gonzalez

, 758 F

. 3d 1119 (9th Cir. 20 1 4 ) ; Aguilar

v. W ood f o r d

, 725 F .3d 970 ( 9th Cir. 2013), cert. denied

, 134 S. Ct. 1869 ( 2014). The d i s pute is whether the Nevada Supreme Court applied a stand a rd contrary to that of Brady

or unreasonably a

pplied Brady

. W

illiams v. Taylor

, 529 U.S. 362, 405–06 (2000).

Comstock carries the burden of proof. Cullen v

. Pinhols t e r , 1 3 1 S. Ct. 1388, 1398 (2011). He must showC O M S T O C K V

. H U M P H R I E S 11

either that “the state court applie[ d] a rule that contradicts the
go v erning law set forth in [ Brady ]
, ” W illiams

, 529 U.S. at 405, or that the s t a t e court’s a pplication of Brady was “‘objectively unreasonable,’” W hite v. W oodall

, 134 S. C t. 1697, 1702 (2014) (quoting Lockyer v. Andrade

, 538 U.S. 63, 75 (2003)). Objective unreasonableness is a very demanding standard; “even ‘clear error’ will not suffice. ” Id

. (quoting Lockyer

, 5 38 U.S. at 75). Comstock must show that the state court’s decision was “so lacking in justification that there was

an error well understood a nd c o mprehended in ex isting law bey ond a ny possibility for fai r m i nded disag reement.” Id

. (quoting Harringto n v

. Richter

, 562 U.S. 86, 103 (2011)) (internal quotation mark omitted). I n d etermining whether Comstock has carried h is burden, we focus on Supreme Court

case law and may look to ou r o w n precedent only a s persuasive authority in determining whether the sta t e c o u rt unreasonably applied Supreme Court law. Howard v. Clark

, 608 F .3d 563, 568 (9th Cir. 2010).

B. Application of

Legal F r am ew o rk

A Brady violation has three components: (1) the evidence
at issue must be favorable to the accused, ( 2) the evidence
must h ave been suppressed b y the Stat e , a n d (3) the suppression must h ave been prejudicial. Strickler v. Greene
, 527 U .S. 263, 281–82 ( 1999). The evidence at issue here is the information that Randy Street, the owner of the alleg edly stolen ring

, claims to have shared with the State before trial. According to Street’s pre-sentencing victim i m p a c t s t a t e m e n t , he told the prosecutor and t h e d e tective that he “ may have placed [ his] r ing on the g round while outside [ his] apartment washing [ his] motorcy cle,” a n d t hat he recalled a specific instance when he took off h is ring “for fear of scratching the paint or chrome,” “placed it either on the g round or on the airC O M S T O C K V

. H U M P H R I E S 12

conditioner outside,” a

nd did n ot “re m e m ber putting it back on.” 3 W e conclude that Street’s recollections detailed in his
statement were favorable to Comstock and suppressed to his prejudice.

1. The Evidence Was F avorable

Evidence is “favorable to t h e accused” for Brady purposes if it is either ex culpatory

or impeaching

. Strickler , 527 U.S.
at 281–82. I f information wo u l d be “advantag eous” to the defendant, Bank

s v

. Dretke

, 540 U.S. 668, 691 (2004), o r “would tend to call the g overnment’s case into doubt,” Milke v. Ryan , 711 F .3d 998, 1012 (9th Cir. 2013), it is favorable.

The N evada Supreme Court d id not make a clear determination as to whether Street’s recollections were favorable to Comstock. T h e court conclud ed that the

3 T h e State arg u es th at th e po rtio n o f Street’ s stat e m e n t r e g ard in g h is
sp ecif ic reco llectio n o f p l acin g h is rin g d o w n o u tsid e pertain ed to a p rio r in cid en t, an d th at Street s u b seq u en tly retriev ed t h e rin g an d h ad it i n h is
p o ssessio n b ef

o re Co m s t o c k alleg ed ly sto le i t. T h e m u ch m o re n atu ral read in g o f Street’ s statem en t is th at h e s p ecif ically rem em

b ered rem o v in g th e rin g an d d i d n o t recall h av in g it ag ain bef ore it w as reco v ered at th e p aw n sh o p

. Oth erw ise, w

h y w o u ld h e rem ark th at h e d i d n o t “ rem em ber
p u ttin g it b ack o n ”? Mo reo v er, ev en if th e j u ry “ co u ld h av e” i n d u lg ed th e State’ s strain ed in terp retatio n o f Street’ s statem en t, S mith v. Ca in
, 1 3 2 S. Ct. 6 2 7
, 6 3 0 (2 0 1 2 ), th at w ou ld n o t alter o u r co n clu sio n th at th e ev id en ce

w as su pp ressed in v io l atio n o f Bra d y

. T h e n o n d isclo su

re o f a statem en t th e j u ry co u ld h av e—h ere, lik ely w ou ld h av e—in terp reted as a co n crete

reco llectio n o f th e sp ecif

i c in cid en t in w

h ich th e rin g co u ld h av e b een l ost

u n d erm in es co n f

id en ce in th e j u ry ’ s v erd ict. S ee id

. Fin ally

, ev en if w e

assu m e th e j u ry w o u ld h av e ad o p ted th e S t a t e ’ s in terp retatio n , Street’ s

s t a t em en t w o u ld still b e Bra d y ev id en ce, as w e d iscu ss in fra

, becau s e i t

su p p o rted th e th eo ry th at t

h e rin g co u ld h av e b een lo st, w h ich w o u ld h av e b een m aterially

u sef u l f o r th e d ef en se.C O M S T O C K V

. H U M P H R I E S 13

information in the statement was “ mere speculation” that did “not contradict [ Street’s] trial testimony or rise to the level o f

a recantation” and had only “minimal” impeachme n t value. I n so holding

, the court may have intended to sug g est t h at Street’s recollections were not favorable. However, whether evidence is favorable i s a q uestion o f substance, not deg ree, and evidence that has any affirmative, evidentiary support for the defendant’s case or any impeachment value i s , b y definition, favorable. See Strickler

, 527 U.S. a t 281–82. Althoug h the w eig ht of the evidence bears on whether its

su p p ression was prejudicial, evidence is favorable to a defendant even if its value is o nly minima l

. S ee id. ; Milke

, 7 1 1 F.3d a t 1012. According ly

, Street’s recollections were favorable to Comstock—they impeached Street’s credibility in terms of h ow he handled his ring

, and mo r e i mportantly

, affirmatively cast serious doubt on whether there was a crime in the first place. Any sug g estion other w i s e i n the state court’s decision was c o n t r a ry to Brady

. 28 U .S.C. § 2254(d)(1 ); see a lso W illiams

, 5 29 U.S. at 405–06; Runningeagle v. Ryan
, 686 F .3d 758, 785 (9th Cir. 2012) ( “I n the c ontex t of a Brady claim,

. . . a state court’s use o f the
wrong standard

. . . will result in a decision t h a t i s ‘ contrary to’ clearly

established federal law.”).

2. The Evidence Was Suppressed

Evidence is “suppressed” wh e r e it is known to the State and not disclosed to the defendant. Strickler

, 527 U.S. at 282. The State’s duty to disclose is affirmative; it applies “even thoug h there has been no r equest by the accused.” Id. at 280 (citing United States v. Agurs
, 427 U.S. 97, 107 (1976)). T o satisfy its duty

, the State must disclose evidence known to the prosecutor a s well as evidence “‘known o n ly to police investig ators and not to the prosecutor.’” Id. at 28 0–81C O M S T O C K V

. H U M P H R I E S 14

(citing Kyles v. W

hitley

, 514 U .S. 4 1 9, 438 (1995)). Thus, the prosecutor h a s an o blig ation “to learn of any favorable evidence known to t h e others acting o n the g overnment’s behalf in [the] case, including the police.” Id. at 281 (citing Kyl es , 514 U.S. at 437). Once the prosecutor a cquires favorable information, e ven if she “inadvertently ” fails to communi cate it to the defendant, evidence has been suppressed. Id. a t 282.

The Nevada Supreme Court did not determine if t h e information in Street’s statement was suppressed because the
court f ailed to make a factual finding reg a rding what the State knew prior to trial. The court not e d that the State disputed Street’s assertion that he had volunteered his recollections to the p rosecutor and detectiv e , b ut the court nevertheless analy z ed, albeit briefly

, whet h e r the alleg ed failure to disclos e t h o se recollections violated Brady. Thus, the court appears to have assumed that Street’ s r e c ollections were suppressed.

Had the Nevada Supreme Court made a finding that the State lacked knowledg e of Street’s recollections, we w ould be bound to show deference to that finding

. “B ut the state court made no such finding .” W iggins v. Smith

, 539 U.S. 510, 530 (2003). Had the d istrict c o u r t b elow made a finding
reg arding the State’s k

nowledg e, we would review it for clear

error. W e aver v

. Thompson

, 197 F .3d 359, 363 (9th Cir. 1999). B ut the district court ex pressly made “no f actual finding or ho l ding as to the n ondisclosure element.” W e therefore review the record d e novo. See W iggins
, 539 U.S. at 531.

No evidence in the record c o n tradicts Street’s assertion that prior to trial, he p rov i d e d the State w ith the sameC O M S T O C K V

. H U M P H R I E S 15

information that app eared in his victim impact statement. T h e Nevada c ourts did not hold an evidentiary hearing

, a n d the State did not submit any de c l a r a tions or other evidence (such as a report, transcript, or recording ) to contest Street’s assertion. Althoug h the St a te’s brief in opposition to C o m s t ock’s new trial motion claimed that Street told the State that he did not lose the ring

, a rg uments in briefs a

re not evidence, see Ba r c a m e r ica Int’l USA Trust v. Tyfield Imps., Inc.
, 289 F

. 3d 589, 5 93 n.4 (9th Cir. 2 002), and t h e S t a t e ag reed at oral arg ument th a t we need not consider any unsuppo r t e d factual contentions in its new trial opposition br i ef. Moreover, if the State’s contentions in its briefs a re relevant, they are re levant as admissions. The brief in opposition to Com s t o ck’s new trial motion conceded that when pressed b y the prosecutor and detective, Street acknowledg ed the possibility that h e mig ht have misplaced his ring . I n its brief to the Nevada Supreme Court, the State
ag ain effectively conceded that it h a d withheld Street’s recollectio n s , a r g u ing that “it [ is] not at all clear that what Street told the prosecutor amounts to B rady material” a nd that “even if the prosecutor tacked a little too clo s e t o [ the] wind and should have revealed the ‘inconsistent’ statement, Comstock c ould not have been prejudiced by [ the State’s] withholding this information” (emphases added) (citation omitted).

B o th in t h e d istrict court b elow and on appeal here, the State h as n o t disputed Comstock’s contention that informati o n was suppressed. B ecause the State has not arg ued that it was unaware of Street’s r ecollections an d has instea d c o n sistently taken the position that its f ailure to disclose those recollections was not prejudicial, we conclude that evidence was suppressed.C O M S T O C K V

. H U M P H R I E S 16

3. The Suppression Was P r ejudicial

The suppression o f f

avorable evidence is prejudicial if th at evidence was “material” for Brady purposes. S trickler

, 527 U.S. at 282. E vidence is “ mat e r i a l ” i f it “could reasonably be taken to put the whole case in such a different lig ht as to unde r m i n e c onfidence in the verdict.” Id. at 290 (citing K y l e s , 514 U .S. at 435). T o establish materiality

, a defendant need not demonstrate “that disclosure of the suppressed e v i d ence would h ave resulted ultimately in [ his] acquitt a l

. ” K

y les

, 514 U .S. at 434. Rather, the defendant need only e stablish “a ‘reasonable probability ’ of a different result.” I d. (quoting United State s v

. B a gley

, 4 73 U.S. 667, 678 (1985)). A “reasonable probability ” ex ists if “the
g o v e r n m e n t ’ s e v i d e n t i a r y s u p p r e s s i o n ‘ u n d e r m i n e s confidence in the outcome of the trial.’” Id. (quoting Bagley

, 473 U.S. at 678); see also United S t a t es v. Sedaghaty

, 728 F .3d 885, 900 (9th Cir. 2013) ( “I n evaluating materiality

, we f ocus on whether the withholding of the evidence undermines our trust in the fairness of the trial and the resulting verdict.”).

The N evada Supreme Cour t d e termined that Comstock had f ailed to show that the information in Street’s statement “was either ex cul p a t o ry or material,” o r that its disclosure would “have created a r e a s o nable probability o f a different verdict.” The cou r t characteriz ed the information as “mere speculation” with only “minimal” impea c hment value, because it did “ not contradict [ Street’s] trial testimony or r ise
to the level of a recantation.” Those c h a r a c teriz ations both unders t a t ed the impeachment value of Street’s recollections

a nd ig nored their ex c ulpatory value in lig ht of the t r i al testimony and the prosecutor’s closing arg ument.C O M S T O C K V

. H U M P H R I E S 17

At trial, Comstock attempted to elici t t e stimony to support his defense that the ring had b een lost a nd later found outside Street’s apartment. Comstock’s cross-ex amination of Street

was demonstrably ineffective. W hen Comstock’s c ou n s el asked if Street had ever d r opped the ring outside, Street replied, “Not that I ’m aw a r e o f.” When asked if he could have dropped it u nknowing ly

, he initi ally conceded that possibility b ut i m m e d iately added that it “would have never fallen off or dropped.” W hen a sked if he had ever misplaced the r ing

, Street answered, “W ithin my home or establishment, sure.” W h en counsel posited that perhaps Street had left his ring in his p ants pocket and it had fallen out by the laundry

room in his apartment complex

, Street r esponded, “I ’ve never left it in my pants.” W hen counsel sug g ested that Street may have made a b et at a bar and g iven someone else the ri ng to hold as collateral, Street r eplied, “No, sir. Means too much.” The most counsel w as able to establish w as that Street could

n o t b e c ertain he had never b efore lost h is ring “outside the apartment.”

The disclosure o f Street’s r ecollections would have transformed his c ross-ex aminatio n a n d the trial. I nstead o f having to ask open-ended questions ex ploring w hethe r t he ring mig ht have been dropped or lost, counsel would ha v e b e e n a rmed w ith Street’s specific admission that h e “may have placed [ his] ring on the g round while outside [ his] apartme n t washing [ his] motorcy cle.” I nstead of g roping blindly a t hy

pothetical laundry mishaps or b ar bets g o ne wrong , counsel co u ld have deploy ed Street’s specific recollection of an occasion when he removed his ring

, placed it on the g round or on an air conditioner outside, and did not recall putting it back o n

. B ecause the State suppressed Street’s r ecollections of these p articular, relevant facts, “theC O M S T O C K V

. H U M P H R I E S 18

defense was empty handed” during Street’s crossex a mination. S

edaghaty , 728 F .3d at 900.

W e have h eld that impeachment evidence is material “if it could have been u sed to impeach a key prosecution witness sufficiently to undermine confidence in the verdict.” Paradis

v. Arave
, 2 4 0 F .3d 1169, 1 179 ( 9th Ci r

. 2001); see also Sedaghaty

, 728 F .3d at 900 (“[ W] e z ero in on whether the suppressed materials could have provided an effective means of impeachme n t

. ”). B ecause Street’s recollections would have u ndermined t he State’s narrative of safekeeping —the
very foundation o f the State’s case—those recollections should have been disclosed for impeachment purposes.

Ex culpatory evidence is material if its introduction at trial “would h ave resulted in a m a r k edly w eaker case for the prosecution and a markedly strong e r o n e for the d efense.” Kyles

, 514 U.S. at 441. W ithout the information in S treet’s statement, the jury w as led to believe that Street would never have simply set his p r iz ed ring o n the ground or somewhere else outside, and Comstock’s defense that the ring was found,
not stolen, was therefore implausible. T he fact that Street h ad told the State that he may have placed his ring on the g round, and that he did put it either on the g round or an air conditioner outside at some point, wo u l d have made the State’s case m arkedly weaker and Comstock’s defense markedly strong er. Street’s recollections therefore should have been disclosed for ex culpatory purposes, too.

Supreme Court c a s e l aw also instructs that the “likely damag e” from the suppression of B rady evidence “ is best

u nderstood” by reference to the p r osecutor’s closi n g arg uments. Id. at 444. Here, the prosecutor relied on Street’s testimo n y to emphatically d ispute Comstock’s found-ringC O M S T O C K V

. H U M P H R I E S 19

d e fense. I n her c losing

, the prosecutor arg ued that the r i n g could not possibly have been lost because Street k e p t it in a seashell in his apartm e n t , k n ew ex actly where it was, a nd testified a s to its im m e nse importance. The p rosecutor paraphrased Street’s testimony as stating that the ring “can’t fall off,” “he’s never lost it before,” and “he did not put it in his pants pocket.” She sug g ested that the ring could not have been found outside Street’s apartment, because “[ h] e keeps it in a seashell o r h e wears it. H e would never lose a ny thing with that sig nificant of value.”

The prosecutor’s a

rg u ments confirm that Street’s testimony was the linchpin of the State’s case. That case was built on circumstantial evidence and inference. As the State conceded in its brief to the Nevada Supreme Court, there was

a “lack o f direct e vidence,” and “the State really had n o direct proof establishing e x actly how Comstock c ame into [ possession] of the ring .” The prosecutor ex h orted the jury to infer that the ring had to h ave been stolen bec a u se Street’s testimony e stablished that it c ould not have been lost. Given that the State had no direct evidence of Comstock’s g uilt, its suppression of Street’s e x pressed d o u b ts and recollections

was especially prejudicial. See A mado

, 758 F .3d a t 1140–41 (holding that Brady e vidence was material w her e o t h er evidence was weak); Aguilar , 725 F .3d at 985 (same).

I n short, b ecause the information in Street’s i m pact statement would have substant i a lly diminished, if not defeated, the State’s ability t o prove b ey ond a reasonable doubt that the ring was stolen, the State’s suppression of that information “‘undermines confidence in the outcome o f the trial.’” Kyles

, 514 U.S

. a t 434 ( quoting Bagley

, 473 U.S. at 678). Had the information been disclosed, there is at least a “reasonable p robability ” tha t the result would have beenC O M S T O C K V

. H U M P H R I E S 20

d i f f e rent. Id. The state court’s contrary conclusion was a n unreasonable application of B rady and its prog e ny

.

W e also reject the district court’s conclusion that Street’s recollections were immaterial b ecause Comstock could have been charg ed, tried, and convicted o n the theory tha t he h ad misappropriated l o st property

. 4 I t is true that under Nevada law, “theft” includes the misappropriation of lost property “without reasonable efforts to notify the true owner” when circumstances provide “ means of inquiry as to the true owner.” Nev. Rev. Stat. § 205.0832(1)(d). I t is a lso true that the p o ssession of stolen property o ffense for which Comstock

was convicted encompasses posses s i on of property that was lost and misappropriated. See Nev. Rev. Stat. § 205.275(7). H o w e v er, Comstock w as specifically charg ed w i t h p o s s e s s i o n of stolen property “obtained by means of larceny ” (emphasis added). 5 L arceny , unlike misappro priation, requires an intentional stealing

, taking

, and carry i n g away

. S

ee Nev. Rev. Stat. § 205.220(1).

W e eval u a te the materiality of Brady evidence based on the crimes charg e d, not based on the crimes that mig ht have

4 W e n o t e th at th e Nev ad a Su p rem e Co u rt d o es n o t ap p ear to h av e relied

o n t h is arg u m en t, th e State d id n ot m ak e th is arg u m en t to th e d istrict co u rt,

a n d t h e S tate do es n ot m ak e th is arg u m en t o n ap p eal. Un d er t h e circu m s tan ces, w e w o u ld be f u lly j u stif ied in h o ld in g t h at th e arg u m en t

w as w aiv ed

. S

ee Clem v. Lo meli

, 5 6 6 F.3 d 1 1 7 7
, 1 1 8 2 (9 th C ir. 2 0 0 9 ). W e ad dress i t o n its m erits o n ly b e c a u se Co m sto ck is en titled to relief

ev en if th e State is g iv en

ev ery b en ef it o f an y d o u b t.

5 A s Co m s to ck p o in ts o u t, Nev ad a req u ires th e St a t e’ s ch arg in g d o cu m en t to sp ecif

i cally id en tif

y w h ich f o rm o f “ th ef

t” w as al leg ed ly

co m m itted

. S ee S t

a te v. Ha n co ck

, 95 5 P .2 d 1 8 3
, 1 8 6 (Nev

. 19 9 8) (af f irm in g d i sm issal o f

in d ictm en t

f o r lack o f sp ecif icity ).C O M S T O C K V

. H U M P H R I E S 21

been c harg ed. See United States v. Mejia

- M esa , 153 F .3d 925, 927–28 ( 9 t h Cir. 1998); United States v. Strifler

, 851 F .2d 1197, 1202 ( 9th Cir. 1988); cf. McCormick v. United States
, 500 U.S. 257, 270 n.8 (1991) (noting that the Supreme Court “has never held that the rig ht to a jury

trial is satisfied when an a

p p e l l a te court retries a case on appeal under different instructions and on a different theory than was ever presented t o the jury

. Appellate courts are not permitted to affirm convictions o n a

ny theory they please simply because the facts n e cessary to support the theory w ere presented to the jury .”). This makes sense. Brady requires pro s e c u tors to disclose e vidence that is “material to the defendant’s g uilt o r punishment.” Smith

, 132 S. Ct. a t 630. Guilt or punishment cannot, o f course , b e premised on uncharg ed crimes, a nd evidence that directly undermines the p rosecution’s theory o f the charg ed crime is “ plainly material” under Brady

. Id. ; see also W illiams v. Ryan
, 623 F

. 3d 1258, 1 26 5
, 1 2 66 (9th Cir. 2010) (holding that e vidence w as “classic Brady material” where it was “inconsistent with the State’s theory a t trial” a nd provided the names of witnesses who could h a ve “undercut the prosecution’s theory ” (internal quotation m a r k s omitted)); Benn v. Lambert

, 283 F .3d 1040, 1062 (9th Ci r. 2 002) (holding the State violated Brady where it withheld evidence that “would have substantially u ndermined the s t ate’s principal theory ”). J u st as a habeas petitioner alleg ing actual innocence need not est a b l i sh that he was innocent of an uncharg e d crime, Bousley v. United States
, 5 23 U.S. 614, 624 (1998), a p etitioner alleg ing a B rady violation need not establish that the suppressed e vidence would have ex culpated him from an uncharg ed offense.

F urthermore, even if it were permissible to disreg ard the lang uag e of a charg ing document on th e t h eory that the defendant was convicted of a variant of the charg ed crime, weC O M S T O C K V

. H U M P H R I E S 22

disag ree with the district court’s su g g estion that Comstock mig ht have been convicted of possess i ng lost a nd misappropriated p r o p e rty , r ather than property that was actively and intentionally stolen. T he district court reasoned tha t ( 1 ) the jury was instructed that “it is necessary to show that the property was the p r o d u c t of theft,” and the term “theft” includes the misappropriation o f lost property , a nd (2) the prosecutor, in her rebuttal closing

, sug g ested that even a found ringcould be stolen. However, the jury instructions did not define “theft” o r sug g e st in any way tha t C o mstock

co u l d be convicted for merely possessing lost a nd f ound property , and the prosecutor’s rebuttal c losing

, like the rest o f the State’s case, emp h a t ically arg ued that the ring “was

c l early stolen from [ Street’s] a p a r tment.” I f Comstock h a d been charg ed and tried on the theory that he possessed a ring that h ad b een lost and misappr o p r i a ted, there would have been different arg uments, evidence, and jury instructions. A

case of “F inders Keepers, L osers W ee pers” differs dramatically

from the burg lary

of a dwelling (which was the
g overnment ’ s effective theory a t trial). W e need not speculate as to how Street’s recollections mig ht have affected hy pothetical proceeding s. T h e s tatement was material because there is at least a re a s o n a b l e probability that its disclosure would have altered the result of the proceeding that

a c t ually occurred. See Smith

, 132 S. Ct. at 630; Banks

, 540 U.S. at 699; Kyles , 514 U.S. at 434.

IV. CONCLUSION

This is the rare criminal case where the entire prosecution rested on the shoul d e rs of one man—Randy Street. Street had serious doubts whether there was any crime at all, and to his credit, e x pressed those doubts and wrote that he recounted
to the prosecutor and detective a specific incident in which heC O M S T O C K V

. H U M P H R I E S 23

recalled taking off t h e ring and did not recall putting it back

o n

. Rather than share this evidence with the defense, t h e prosecution suppressed it. And while Brady d eterminati ons often are difficult, this was not a close call—the k ey witness had reasonable doubts about whether a crime occurred, a nd the prosecution should h ave shared the recollections that formed the basis of those doubts with the defense. The state court’s contrary d e ter m i n ation was an unreasonable applicati o n of B rady

. W e therefore reverse the district court’s judg ment and instruct th a t t h e writ of habeas corpus be g ranted, setting a side Comstock’s conviction a n d s e ntence. Comstock shall be released from probationary custody unless the State notifie s the district court within 30 day s that it intends to retry

him, and commences retrial within 90 day s.

REVERSED and REMANDED.