FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHEN D. COMSTOCK,

Petitioner-Appellant,

v.

STEFANIE HUMPHRIES; NEVADA

ATTORNEY GENERAL,

Respondents-Appellees.

No. 14-15311

D.C. No.

3:10-cv-00147-

LRH-WGC

OPINION

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted

March 11, 2015—San Francisco, California

Filed May 12, 2015

Before: Marsha S. Berzon, Jay S. Bybee,

and John B. Owens, Circuit Judges.

Opinion by Judge Owens
2 COMSTOCK V. HUMPHRIES

SUMMARY*

Habeas Corpus

The panel reversed the district court’s judgment denying

Stephen Comstock’s habeas corpus petition challenging his

Nevada conviction for possessing stolen property—a ring

commemorating Randy Street’s 1991-1992 national college

wrestling championship.

The panel held that Comstock is 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

investigating detective that the ring might have been lost

outside, not stolen from his apartment, just as Comstock’s

lawyer had argued to the jury.

The panel held that Street’s recollections were favorable

to Comstock in that they impeached the credibility of Street’s

trial testimony as to how he handled his ring, and more

importantly, affirmativelycast serious doubt on whether there

was a crime in the first place. The panel also held that the

recollections were suppressed. The panel concluded that the

suppression was prejudicial because had the information been

disclosed, there is at least a reasonable probability that the

outcome of the trial would have been different. The panel

held the state court’s contrary conclusion was an

unreasonable application of Brady and its progeny.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
COMSTOCK V. HUMPHRIES 3

The panel instructed that on remand the writ of habeas

corpus be granted, setting aside Comstock’s conviction and

sentence, and that Comstock be released from probationary

custody unless the State notifies the district court within 30

days that it intends to retry him, and commences retrial within

90 days.

COUNSEL

Ryan Norwood (argued), Assistant Federal Public Defender;

Rene Valladares, Federal Public Defender, Las Vegas,

Nevada, for Petitioner-Appellant.

Victor-Hugo Schulze, II (argued), Senior Deputy Attorney

General; Catherine Cortez Masto, Attorney General, Office

of the Attorney General of Nevada, Las Vegas, Nevada, for

Respondents-Appellees.

OPINION

OWENS, Circuit Judge:

In March 2004, a Nevada jury found Stephen Comstock

guilty of possessing stolen property—a ring commemorating

Randy Street’s 1991–1992 national college wrestling

championship. The State’s theory at trial was that Comstock

or DannyCarter, a known burglar, stole the ring from Street’s

apartment, and then Comstock pawned it. Comstock’s trial

counsel argued that the ring was not stolen, but found outside

Street’s apartment, where Street likely had lost it. The jury

rejected that defense.
4 COMSTOCK V. HUMPHRIES

This seemingly trivial case had tragic results: Comstock

received a 10–25 year sentence under Nevada’s habitual

offender statute1even though the “victim” of this crime,

Randy Street, had serious doubts about whether his ring was

actually stolen. In a pre-sentencing statement, Street wrote

that, prior to trial, he told the prosecutor and the investigating

detective that he remembered a time he had taken the ring off

outside his apartment, placing it either on the ground or on an

air conditioner, and did not recall putting it back on, meaning

that the ring might have been lost outside, not stolen, just as

Comstock’s lawyer had argued to the jury. Yet neither the

prosecutor nor the detective told Comstock’s lawyer this

crucial fact.

We recognize the immense challenge a habeas petitioner

faces when making claims under Brady v. Maryland,

373 U.S. 83 (1963), and that our court routinely rejects such

arguments. But this is no routine case. The troubling and

unique circumstances here compel us to grant Comstock the

relief that he seeks, albeit ten years too late.

I. FACTS

A. The Investigation

Detective Reed Thomas of the Reno Police Department

routinely reviewed transactions at local pawn shops for

1 Although Comstock is currently on parole, he “was incarcerated . . . at

the time the petition was filed, which is all the ‘in custody’ provision of

28 U.S.C. § 2254 requires.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). In

any case, persons on parole are also “in custody” for purposes of § 2254. 

Jones v. Cunningham, 371 U.S. 236, 243 (1963). Comstock’s parole

status also suffices as a concrete injury under Article III, and so, his

petition is not moot. Spencer, 523 U.S. at 7.
COMSTOCK V. HUMPHRIES 5

“unusual property.” In August 2003, something caught his

eye: a collegiate championship wrestling ring with some

engravings—’91–’92,NationalChampion,NorthernMontana

College, 150, and Street. Detective Thomas tracked down the

ring’s owner, Reno resident Randy Street.2 Street thought the

ring was inside its usual place—a seashell in his apartment. 

Thomas informed him that, in fact, the ring had been sold to

a local pawn shop.

The pawn ticket bore the name of Stephen Comstock,

whom Thomas was monitoring under a repeat offender

program. Surveillance video confirmed that Comstock had

pawned the ring. Comstock lived near Street and did

maintenance work at Street’s apartment complex, which had

suffered a series of recent burglaries.

Thomas and his colleagues questioned Comstock at the

police station. Comstock initially said that he could not

remember if he had in fact pawned Street’s ring, or merely

had planned to do so. When pressed, however, Comstock

admitted that he had pawned the ring, and he claimed that he

had done so for his friend Danny Carter, in exchange for a

carton of cigarettes. Comstock said that Carter lacked

 

2

 Street was an outstanding wrestler, winning the Montana high school

state championship three times. He received a collegiate wrestling

scholarship to attend the University of Nebraska and later transferred to

Montana State University Northern, where in 1991–1992, he went 23–0

and led his team to the NAIA national championship. Known for his

“huge heart,” he passed away in 2012 at the age of 42. See Randy Street,

42, Mont. Standard (July 9, 2012, 12:00 AM), http://mtstandard.com/

news/local/obituaries/randy-street/article_e77b863e-c971-11e1-92d9-0

019bb2963f4.html; MSU-Northern NAIA National Champions, Mont. St.

Univ. N. Athletics, http://www.msun.edu/athletics/wrestle/natlchamps.htm

(last visited Mar. 26, 2015).
6 COMSTOCK V. HUMPHRIES

identification, so he could not pawn the ring himself. 

Although Comstock initially stated that he suspected the ring

was stolen, as Carter was a known burglar, he then

backtracked and said that Carter claimed the ring belonged to

Carter’s father. The initials “D.C.” were scratched lightly

inside the ring.

B. The Trial

An indictment charged Comstock with knowingly

possessing stolen property in violation of section 205.275 of

the Nevada Revised Statutes. The indictment charged that the

propertywas “obtained bymeans of larceny.” At Comstock’s

trial, in March 2004, the State argued that the ring was

“clearly stolen from [Street’s] apartment,” either by

Comstock or the serial burglar Carter, and that Comstock

knew or should have known that the ring was stolen when he

pawned it.

Street testified for the prosecution about his cherished

ring. He said that he had never loaned the ring to anyone, it

never fell off accidentally, and he only wore it once or twice

each month. Although he had misplaced it inside his

apartment, he did not recall ever losing it outside. When

Detective Thomas called and asked about the ring, Street did

not know it was missing. He thought 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 Taylor, his ex-girlfriend and the

housekeeper at Street’s apartment complex, as a witness. She

testified that she found the ring in the flower bed outside the
COMSTOCK V. HUMPHRIES 7

complex’s laundry room, and brought it into her apartment. 

According to Taylor, Carter visited her apartment while the

ring was inside, and she let him take it. Taylor acknowledged

that she had dated Comstock and that they broke up several

months before she found the ring.

Comstock also called his 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, and also drove Comstock to

deliver the proceeds to Carter.

Finally, Comstock tried to call Carter to the stand, but

Carter’s attorney was unavailable, and Carter wished to

consult with him before testifying. Thereafter, Comstock

decided not to call Carter, and instead, the State called him as

its rebuttal witness. He testified briefly, stating that he had

never seen the ring.

C. Closing Arguments

The parties agreed that Comstock had pawned the ring but

disagreed as to whether the ring had been stolen. Relying

heavily on the fact that Street cherished and safeguarded the

ring, the prosecutor argued that Street never would have lost

it: “That ring was important to him and he knew exactly

where it was. . . . He didn’t lose it, it was stolen.” After

defense counsel argued that perhaps the ring was simply lost

outside (as Taylor testified), the prosecutor returned to

Street’s testimony: “He keeps it in a seashell or he wears it. 

He would never lose anything with that significant of

value. . . . It was clearly stolen from his apartment.” The jury

returned a verdict of guilty.
8 COMSTOCK V. HUMPHRIES

D. Sentencing

As part of the sentencing process, Street (the alleged

victim) submitted a hand-written victim impact statement. 

Rather than explain how the crime impacted him, he instead

expressed grave concern about whether there had been any

crime at all. Street wrote:

I am not convinced that my ring was stolen. 

To have a clear conscience in this matter, I

have to bring up the possibility that I may

have placed my ring on the ground while

outside my apartment washing my

motorcycle. The ring is large & []I can

remember a time prior to the ring turning up

missing that I took it off for fear of scratching

the paint or chrome. I placed it either on the

ground or on the air conditioner outside & I

don’t remember putting it back on. The

defense attorney kept asking if I may have

dropped it out of [my] pants pocket while I

did laundry. I volunteered this info to

Detective Reed [Thomas] and Prosecutor

Erickson but it never came up @ trial. I never

realized my ring was even missing until

Detective Reed [Thomas] called & said he

found it in [the] pawn shop. I’d hate to see

this gentleman sentenced for possession of

stolen property if it was out of my ignorance

of misplacing it. Please take this into

consideration. He’s probably served enough

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.
COMSTOCK V. HUMPHRIES 9

Street concluded his statement with a note, marked with a

large asterisk for emphasis: “Please make sure that the judge

reads this!”

E. New Trial Motion

Comstock moved for a new trial. He argued that Street’s

statement constituted newly discovered evidence and that it

revealed that the State had failed to disclose favorable

evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963). In its opposition brief (but without a supporting

declaration or other corroborating exhibit), the State asserted

that, prior 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 while working on his

motorcycle, but in all reality, that would not have happened

since the ring was so important to him and, further, that it did

not happen.” Without holding an evidentiary hearing to

determine what Street actually said, the trial court denied

Comstock’s new trial motion in a one-sentence order. The

Nevada Supreme Court affirmed, concluding that there was

no new evidence warranting a new trial and there had been no

Brady violation. Because the Nevada Supreme Court rejected

Comstock’s Brady claim on the merits, it is exhausted 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 petition but

granted a certificate of appealability on Comstock’s Brady

claim. We have jurisdiction to review that claim under

28 U.S.C. § 2253.
10 COMSTOCK V. HUMPHRIES

II. STANDARD OF REVIEW

We review de novo a district court’s decision to deny a

habeas petition. Clabourne v. Ryan, 745 F.3d 362, 370 (9th

Cir. 2014). Under the Antiterrorism and Effective Death

Penalty Act of 1996, we may grant habeas relief only if the

state court adjudication was contrary to, or an unreasonable

application of, clearly established federal law, as determined

by the United States Supreme Court, or resulted in a decision

that was based on an unreasonable determination of the facts. 

28 U.S.C. § 2254(d). When applying this standard, we

review the last reasoned state court decision. Clabourne,

745 F.3d at 371.

III. DISCUSSION

A. Legal Framework

In Brady v. Maryland, the Supreme Court held that “the

suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” 373 U.S. 83, 87

(1963). There is no dispute that Brady constitutes clearly

established federal law for purposes of AEDPA. See, e.g.,

Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014); Aguilar

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

134 S. Ct. 1869 (2014). The dispute is whether the Nevada

Supreme Court applied a standard contrary to that of Brady

or unreasonably applied Brady. Williams v. Taylor, 529 U.S.

362, 405–06 (2000).

Comstock carries the burden of proof. Cullen v.

Pinholster, 131 S. Ct. 1388, 1398 (2011). He must show
COMSTOCK V. HUMPHRIES 11

either that “the state court applie[d] a rule that contradicts the

governing law set forth in [Brady],” Williams, 529 U.S. at

405, or that the state court’s application of Brady was

“‘objectively unreasonable,’” White v. Woodall, 134 S. Ct.

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, 538 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 and comprehended in existing law

beyond any possibility for fairminded disagreement.” Id.

(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011))

(internal quotation mark omitted). In determining whether

Comstock has carried his burden, we focus on Supreme Court

case law and may look to our own precedent only as

persuasive authority in determining whether the state court

unreasonably applied Supreme Court law. Howard v. Clark,

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

B. Application of Legal Framework

A Brady violation has three components: (1) the evidence

at issue must be favorable to the accused, (2) the evidence

must have been suppressed by the State, and (3) the

suppression must have 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 allegedly

stolen ring, claims to have shared with the State before trial. 

Accordingto Street’s pre-sentencingvictim impactstatement,

he told the prosecutor and the detective that he “may have

placed [his] ring on the ground while outside [his] apartment

washing [his] motorcycle,” and that he recalled a specific

instance when he took off his ring “for fear of scratching the

paint or chrome,” “placed it either on the ground or on the air
12 COMSTOCK V. HUMPHRIES

conditioner outside,” and did not “remember putting it back

on.”3 We conclude that Street’s recollections detailed in his

statement were favorable to Comstock and suppressed to his

prejudice.

1. The Evidence Was Favorable

Evidence is “favorable to the accused” for Brady purposes

if it is either exculpatory or impeaching. Strickler, 527 U.S.

at 281–82. If information would be “advantageous” to the

defendant, Banks v. Dretke, 540 U.S. 668, 691 (2004), or

“would tend to call the government’s case into doubt,” Milke

v. Ryan, 711 F.3d 998, 1012 (9th Cir. 2013), it is favorable.

The Nevada Supreme Court did not make a clear

determination as to whether Street’s recollections were

favorable to Comstock. The court concluded that the

3 The State argues that the portion of Street’s statement regarding his

specific recollection of placing his ring down outside pertained to a prior

incident, and that Street subsequently retrieved the ring and had it in his

possession before Comstock allegedly stole it. The much more natural

reading of Street’s statement is that he specifically remembered removing

the ring and did not recall having it again before it was recovered at the

pawn shop. Otherwise, why would he remark that he did not “remember

putting it back on”? Moreover, even if the jury “could have” indulged the

State’s strained interpretation of Street’s statement, Smith v. Cain, 132 S.

Ct. 627, 630 (2012), that would not alter our conclusion that the evidence

was suppressed in violation of Brady. The nondisclosure of a statement

the jury could have—here, likely would have—interpreted as a concrete

recollection of the specific incident in which the ring could have been lost

undermines confidence in the jury’s verdict. See id. Finally, even if we

assume the jury would have adopted the State’s interpretation, Street’s

statement would still be Brady evidence, as we discuss infra, because it

supported the theory that the ring could have been lost, which would have

been materially useful for the defense.
COMSTOCK V. HUMPHRIES 13

information in the statement was “mere speculation” that did

“not contradict [Street’s] trial testimony or rise to the level of

a recantation” and had only “minimal” impeachment value. 

In so holding, the court may have intended to suggest that

Street’s recollections were not favorable. However, whether

evidence is favorable is a question of substance, not degree,

and evidence that has any affirmative, evidentiary support for

the defendant’s case or any impeachment value is, by

definition, favorable. See Strickler, 527 U.S. at 281–82. 

Although the weight of the evidence bears on whether its

suppression was prejudicial, evidence is favorable to a

defendant even if its value is only minimal. See id.; Milke,

711 F.3d at 1012. Accordingly, Street’s recollections were

favorable to Comstock—they impeached Street’s credibility

in terms of how he handled his ring, and more importantly,

affirmatively cast serious doubt on whether there was a crime

in the first place. Any suggestion otherwise in the state

court’s decision was contrary to Brady. 28 U.S.C.

§ 2254(d)(1); see also Williams, 529 U.S. at 405–06;

Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012) (“In

the context of a Brady claim, . . . a state court’s use of the

wrong standard . . . will result in a decision that is ‘contrary

to’ clearly established federal law.”).

2. The Evidence Was Suppressed

Evidence is “suppressed” where 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

though there has been no request by the accused.” Id. at 280

(citing United States v. Agurs, 427 U.S. 97, 107 (1976)). To

satisfy its duty, the State must disclose evidence known to the

prosecutor as well as evidence “‘known only to police

investigators and not to the prosecutor.’” Id. at 280–81
14 COMSTOCK V. HUMPHRIES

(citing Kyles v. Whitley, 514 U.S. 419, 438 (1995)). Thus, the

prosecutor has an obligation “to learn of any favorable

evidence known to the others acting on the government’s

behalf in [the] case, including the police.” Id. at 281 (citing

Kyles, 514 U.S. at 437). Once the prosecutor acquires

favorable information, even if she “inadvertently” fails to

communicate it to the defendant, evidence has been

suppressed. Id. at 282.

The Nevada Supreme Court did not determine if the

information in Street’s statement was suppressed because the

court failed to make a factual finding regarding what the State

knew prior to trial. The court noted that the State disputed

Street’s assertion that he had volunteered his recollections to

the prosecutor and detective, but the court nevertheless

analyzed, albeit briefly, whether the alleged failure to

disclose those recollections violated Brady. Thus, the court

appears to have assumed that Street’s recollections were

suppressed.

Had the Nevada Supreme Court made a finding that the

State lacked knowledge of Street’s recollections, we would be

bound to show deference to that finding. “But the state court

made no such finding.” Wiggins v. Smith, 539 U.S. 510, 530

(2003). Had the district court below made a finding

regarding the State’s knowledge, we would review it for clear

error. Weaver v. Thompson, 197 F.3d 359, 363 (9th Cir.

1999). But the district court expressly made “no factual

finding or holding as to the nondisclosure element.” We

therefore review the record de novo. See Wiggins, 539 U.S.

at 531.

No evidence in the record contradicts Street’s assertion

that prior to trial, he provided the State with the same
COMSTOCK V. HUMPHRIES 15

information that appeared in his victim impact statement. 

The Nevada courts did not hold an evidentiary hearing, and

the State did not submit any declarations or other evidence

(such as a report, transcript, or recording) to contest Street’s

assertion. Although the State’s brief in opposition to

Comstock’s new trial motion claimed that Street told the

State that he did not lose the ring, arguments in briefs are not

evidence, see Barcamerica Int’l USA Trust v. Tyfield Imps.,

Inc., 289 F.3d 589, 593 n.4 (9th Cir. 2002), and the State

agreed at oral argument that we need not consider any

unsupported factual contentions in its new trial opposition

brief. Moreover, if the State’s contentions in its briefs are

relevant, they are relevant as admissions. The brief in

opposition to Comstock’s new trial motion conceded that

when pressed by the prosecutor and detective, Street

acknowledged the possibility that he might have misplaced

his ring. In its brief to the Nevada Supreme Court, the State

again effectively conceded that it had withheld Street’s

recollections, arguing that “it [is] not at all clear that what

Street told the prosecutor amounts to Brady material” and

that “even if the prosecutor tacked a little too close to [the]

wind and should have revealed the ‘inconsistent’ statement,

Comstock could not have been prejudiced by [the State’s]

withholding this information” (emphases added) (citation

omitted).

Both in the district court below and on appeal here, the

State has not disputed Comstock’s contention that

information was suppressed. Because the State has not

argued that it was unaware of Street’s recollections and has

instead consistently taken the position that its failure to

disclose those recollections was not prejudicial, we conclude

that evidence was suppressed.
16 COMSTOCK V. HUMPHRIES

3. The Suppression Was Prejudicial

The suppression of favorable evidence is prejudicial if

that evidence was “material” for Brady purposes. Strickler,

527 U.S. at 282. Evidence is “material” if it “could

reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.” Id. at 290

(citing Kyles, 514 U.S. at 435). To establish materiality, a

defendant need not demonstrate “that disclosure of the

suppressed evidence would have resulted ultimately in [his]

acquittal.” Kyles, 514 U.S. at 434. Rather, the defendant

need only establish “a ‘reasonable probability’ of a different

result.” Id. (quoting United States v. Bagley, 473 U.S. 667,

678 (1985)). A “reasonable probability” exists if “the

government’s evidentiary suppression ‘undermines

confidence in the outcome of the trial.’” Id. (quoting Bagley,

473 U.S. at 678); see also United States v. Sedaghaty,

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

we focus on whether the withholding of the evidence

undermines our trust in the fairness of the trial and the

resulting verdict.”).

The Nevada Supreme Court determined that Comstock

had failed to show that the information in Street’s statement

“was either exculpatory or material,” or that its disclosure

would “have created a reasonable probability of a different

verdict.” The court characterized the information as “mere

speculation” with only “minimal” impeachment value,

because it did “not contradict [Street’s] trial testimony or rise

to the level of a recantation.” Those characterizations both

understated the impeachment value of Street’s recollections

and ignored their exculpatory value in light of the trial

testimony and the prosecutor’s closing argument.
COMSTOCK V. HUMPHRIES 17

At trial, Comstock attempted to elicit testimony to support

his defense that the ring had been lost and later found outside

Street’s apartment. Comstock’s cross-examination of Street

was demonstrably ineffective. When Comstock’s counsel

asked if Street had ever dropped the ring outside, Street

replied, “Not that I’m aware of.” When asked if he could

have dropped it unknowingly, he initially conceded that

possibility but immediately added that it “would have never

fallen off or dropped.” When asked if he had ever misplaced

the ring, Street answered, “Within my home or establishment,

sure.” When counsel posited that perhaps Street had left his

ring in his pants pocket and it had fallen out by the laundry

room in his apartment complex, Street responded, “I’ve never

left it in my pants.” When counsel suggested that Street may

have made a bet at a bar and given someone else the ring to

hold as collateral, Street replied, “No, sir. Means too much.” 

The most counsel was able to establish was that Street could

not be certain he had never before lost his ring “outside the

apartment.”

The disclosure of Street’s recollections would have

transformed his cross-examination and the trial. Instead of

having to ask open-ended questions exploring whether the

ring might have been dropped or lost, counsel would have

been armed with Street’s specific admission that he “may

have placed [his] ring on the ground while outside [his]

apartment washing [his] motorcycle.” Instead of groping

blindly at hypothetical laundry mishaps or bar bets gone

wrong, counsel could have deployed Street’s specific

recollection of an occasion when he removed his ring, placed

it on the ground or on an air conditioner outside, and did not

recall putting it back on. Because the State suppressed

Street’s recollections of these particular, relevant facts, “the
18 COMSTOCK V. HUMPHRIES

defense was empty handed” during Street’s crossexamination. Sedaghaty, 728 F.3d at 900.

We have held that impeachment evidence is material “if

it could have been used to impeach a key prosecution witness

sufficiently to undermine confidence in the verdict.” Paradis

v. Arave, 240 F.3d 1169, 1179 (9th Cir. 2001); see also

Sedaghaty, 728 F.3d at 900 (“[W]e zero in on whether the

suppressed materials could have provided an effective means

of impeachment.”). Because Street’s recollections would

have undermined the State’s narrative of safekeeping—the

very foundation of the State’s case—those recollections

should have been disclosed for impeachment purposes.

Exculpatory evidence is material if its introduction at trial

“would have resulted in a markedly weaker case for the

prosecution and a markedly stronger one for the defense.” 

Kyles, 514 U.S. at 441. Without the information in Street’s

statement, the jury was led to believe that Street would never

have simply set his prized ring on the ground or somewhere

else outside, and Comstock’s defense that the ring was found,

not stolen, was therefore implausible. The fact that Street had

told the State that he may have placed his ring on the ground,

and that he did put it either on the ground or an air

conditioner outside at some point, would have made the

State’s case markedly weaker and Comstock’s defense

markedly stronger. Street’s recollections therefore should

have been disclosed for exculpatory purposes, too.

Supreme Court case law also instructs that the “likely

damage” from the suppression of Brady evidence “is best

understood” by reference to the prosecutor’s closing

arguments. Id. at 444. Here, the prosecutor relied on Street’s

testimony to emphatically dispute Comstock’s found-ring
COMSTOCK V. HUMPHRIES 19

defense. In her closing, the prosecutor argued that the ring

could not possibly have been lost because Street kept it in a

seashell in his apartment, knew exactly where it was, and

testified as to its immense importance. The prosecutor

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 suggested that the ring could not have

been found outside Street’s apartment, because “[h]e keeps it

in a seashell or he wears it. He would never lose anything

with that significant of value.”

The prosecutor’s arguments 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 of direct evidence,” and “the State really had no direct

proof establishing exactly how Comstock came into

[possession] of the ring.” The prosecutor exhorted the jury to

infer that the ring had to have been stolen because Street’s

testimony established that it could not have been lost. Given

that the State had no direct evidence of Comstock’s guilt, its

suppression of Street’s expressed doubts and recollections

was especially prejudicial. See Amado, 758 F.3d at 1140–41

(holding that Brady evidence was material where other

evidence was weak); Aguilar, 725 F.3d at 985 (same).

In short, because the information in Street’s impact

statement would have substantially diminished, if not

defeated, the State’s ability to prove beyond a reasonable

doubt that the ring was stolen, the State’s suppression of that

information “‘undermines confidence in the outcome of the

trial.’” Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at

678). Had the information been disclosed, there is at least a

“reasonable probability” that the result would have been
20 COMSTOCK V. HUMPHRIES

different. Id. The state court’s contrary conclusion was an

unreasonable application of Brady and its progeny.

We also reject the district court’s conclusion that Street’s

recollections were immaterial because Comstock could have

been charged, tried, and convicted on the theory that he had

misappropriated lost property.

4

It 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). It is also true that

the possession of stolen property offense for which Comstock

was convicted encompasses possession of property that was

lost and misappropriated. See Nev. Rev. Stat. § 205.275(7). 

However, Comstock was specificallycharged with possession

of stolen property “obtained by means of larceny” (emphasis

added).5 Larceny, unlike misappropriation, requires an

intentional stealing, taking, and carrying away. See Nev.

Rev. Stat. § 205.220(1).

We evaluate the materiality of Brady evidence based on

the crimes charged, not based on the crimes that might have

4 We note that the Nevada Supreme Court does not appear to have relied

on this argument, the State did not make this argument to the district court,

and the State does not make this argument on appeal. Under the

circumstances, we would be fully justified in holding that the argument

was waived. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009). 

We address it on its merits only because Comstock is entitled to relief

even if the State is given every benefit of any doubt.

5 As Comstock points out, Nevada requires the State’s charging

document to specifically identify which form of “theft” was allegedly

committed. See State v. Hancock, 955 P.2d 183, 186 (Nev. 1998)

(affirming dismissal of indictment for lack of specificity).
COMSTOCK V. HUMPHRIES 21

been charged. See United States v. Mejia-Mesa, 153 F.3d

925, 927–28 (9th 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 right to a jury trial is satisfied

when an appellate court retries a case on appeal under

different instructions and on a different theory than was ever

presented to the jury. Appellate courts are not permitted to

affirm convictions on any theory they please simply because

the facts necessary to support the theory were presented to the

jury.”). This makes sense. Brady requires prosecutors to

disclose evidence that is “material to the defendant’s guilt or

punishment.” Smith, 132 S. Ct. at 630. Guilt or punishment

cannot, of course, be premised on uncharged crimes, and

evidence that directly undermines the prosecution’s theory of

the charged crime is “plainly material” under Brady. Id.; see

also Williams v. Ryan, 623 F.3d 1258, 1265, 1266 (9th Cir.

2010) (holding that evidence was “classic Brady material”

where it was “inconsistent with the State’s theory at trial” and

provided the names of witnesses who could have “undercut

the prosecution’s theory” (internal quotationmarks omitted));

Benn v. Lambert, 283 F.3d 1040, 1062 (9th Cir. 2002)

(holding the State violated Brady where it withheld evidence

that “would have substantially undermined the state’s

principal theory”). Just as a habeas petitioner alleging actual

innocence need not establish that he was innocent of an

uncharged crime, Bousley v. United States, 523 U.S. 614, 624

(1998), a petitioner alleging a Brady violation need not

establish that the suppressed evidence would have exculpated

him from an uncharged offense.

Furthermore, even if it were permissible to disregard the

language of a charging document on the theory that the

defendant was convicted of a variant of the charged crime, we
22 COMSTOCK V. HUMPHRIES

disagree with the district court’s suggestion that Comstock

might have been convicted of possessing lost and

misappropriated property, rather than property that was

actively and intentionally stolen. The district court reasoned

that (1) the jury was instructed that “it is necessary to show

that the property was the product of theft,” and the term

“theft” includes the misappropriation of lost property, and

(2) the prosecutor, in her rebuttal closing, suggested that even

a found ring could be stolen. However, the jury instructions

did not define “theft” or suggest in any way that Comstock

could be convicted for merely possessing lost and found

property, and the prosecutor’s rebuttal closing, like the rest of

the State’s case, emphatically argued that the ring “was

clearly stolen from [Street’s] apartment.” If Comstock had

been charged and tried on the theory that he possessed a ring

that had been lost and misappropriated, there would have

been different arguments, evidence, and jury instructions. A

case of “Finders Keepers, Losers Weepers” differs

dramatically from the burglary of a dwelling (which was the

government’s effective theory at trial). We need not

speculate as to how Street’s recollections might have affected

hypothetical proceedings. The statement was material

because there is at least a reasonable probability that its

disclosure would have altered the result of the proceeding that

actually 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 shoulders of one man—Randy Street. Street

had serious doubts whether there was any crime at all, and to

his credit, expressed those doubts and wrote that he recounted

to the prosecutor and detective a specific incident in which he
COMSTOCK V. HUMPHRIES 23

recalled taking off the ring and did not recall putting it back

on. Rather than share this evidence with the defense, the

prosecution suppressed it. And while Brady determinations

often are difficult, this was not a close call—the key witness

had reasonable doubts about whether a crime occurred, and

the prosecution should have shared the recollections that

formed the basis of those doubts with the defense. The state

court’s contrary determination was an unreasonable

application of Brady. We therefore reverse the district

court’s judgment and instruct that the writ of habeas corpus

be granted, setting aside Comstock’s conviction and sentence. 

Comstock shall be released from probationary custody unless

the State notifies the district court within 30 days that it

intends to retry him, and commences retrial within 90 days.

REVERSED and REMANDED.