In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1558

Michael A. Newell,

Petitioner-Appellant,

v.

Craig Hanks,

Respondent-Appellee.

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. TH 97-127-C-M/F--Larry J. McKinney, Chief Judge.

Argued February 14, 2002--Decided March 12, 2002

 Before Flaum, Chief Judge, and Bauer and

Evans, Circuit Judges.

 Flaum, Chief Judge. On April 24, 1997,

Michael Newell filed a petition for writ

of habeas corpus under 28 U.S.C. sec.

2254. The district court dismissed the

petition as untimely, or alternatively

for lack of merit, and Newell appeals. We

vacate the judgment and remand the case

for further proceedings.

I. Background

 In 1990 Newell was convicted in the

Superior Court of Knox County, Indiana,

of dealing cocaine, Ind. Code sec. 35-48-

4-1, and was sentenced to 30 years’

imprisonment. The evidence at trial had

showed that an individual named Fred

Wells, driving one of Newell’s vehicles,

met police officer Richard McGee and

confidential informant Brad Foote at a

Quickstop gas station in Vincennes,

Indiana, where he sold McGee a bag of

cocaine for $950. McGee testified that

when he asked whether the substance was

"Newell’s stuff," Wells replied, "Yea, I

just came from there."

 The sale had been preceded by the

following telephone conversation between

Newell ("Mike") and Foote ("Brad"),

recorded and corroborated at trial by

police officer Dennis Holt:
MIKE: Hello.

BRAD: Mike?

MIKE: Yes.

BRAD: Hey, how’s it going?

MIKE: Okay.

BRAD: I’m sorry to take so long, but I’m

back with you.

MIKE: Uh huh.

BRAD: So, can ah . . . can you take off

and meet me at the, ah, out by the

Executive or something?

MIKE: What about the place . . . ah, being

Bobe’s?

BRAD: Well, we can go over there, but like

I said I’m here right now.

MIKE: Well, he doesn’t want to go there,

he wants to go to Bobe’s.

[MIKE]: Yeah, and . . . ah, are you going

to be by yourself, you know, he’s kind of

paranoid, you got to understand why.

BRAD: Yeah, I can understand that.

MIKE: But it’s all together, everything,

right . . . is everything right on your

end?

BRAD: Yeah, yeah.

MIKE: For sure?

BRAD: For sure.

MIKE: Okay, how about Quickstop in twenty

minutes?

BRAD: Quickstop in twenty minutes?

MIKE: Yeah.

BRAD: Okay, what kind of car do you . . .

is he coming up in?

MIKE: Ah, probably my red pickup truck.

BRAD: The one with the back window out?

MIKE: Yeah, either that or the other one.

BRAD: Okay, I’ll recog . . . I’ll
recognize that, I just want to make sure

it’s somebody I know cause I just hate

standing around, hanging around.

MIKE: It’s Freddy. Okay, I’ll see ya.

BRAD: Okay, it’s be all right, bye.

The audiotape and transcript of this

conversation, together with the testimony

of officers McGee and Holt, were

apparently the only pieces of evidence

linking Newell to the charged

transaction. Neither Wells nor Foote

testified at Newell’s trial.

 On April 24, 1997, Newell (through his

attorney) filed his first sec. 2254

petition, in which he principally alleges

that the state violated Brady v.

Maryland, 373 U.S. 83 (1963), by

concealing pretrial communications that

took place between prosecutor Lee

Hoefling and Wells. To support his claim,

Newell presented the transcript of a

deposition taken from Wells on May 30,

1996, during which Wells testified that,

before Newell’s trial date, Wells met

with prosecutor Hoefling and officers

Holt and McGee and told them that the

cocaine he sold McGee did not belong to

Newell but instead to an individual named

Doug Jackson. Wells further testified in

his deposition that he told Hoefling that

he would not testify against Newell.

Hoefling then allegedly proposed the

following deal: if Wells took the stand

at Newell’s trial and refused to testify

on Fifth Amendment grounds, Wells would

receive only six years for the cocaine

charge pending against him. Wells

accepted this agreement, which was

communicated to him by his lawyer, and

invoked his Fifth Amendment rights, first

at a pretrial deposition scheduled by

Newell’s trial attorney and then again at

Newell’s trial. He later received a sixyear sentence, but not for the drug

charge./1 Wells stated in his

deposition that, had he testified at

trial, he would have denied having told

McGee that the cocaine was Newell’s.

 According to Newell’s petition,

prosecutor Hoefling failed to disclose

any of the above information, not even in

response to discovery requests that would

have required its production. Newell’s

petition further claims that Hoefling

affirmatively concealed the existence of
Wells’s cooperation agreement, going so

far as to "cause[ ] the records of the

Knox Superior Court Division 1 to reflect

the State’s objection to Wells’s Motion

for Bond Reduction (which was granted)

when, in fact, the State had

affirmatively agreed to his release on

the date of his cooperation." Moreover,

Newell claims, Hoefling told the jury

during his opening statement that he had

subpoenaed Wells but could not predict

whether he would testify, and argued that

the out-of-court statement submitted

through McGee’s testimony was not hearsay

because Wells was under subpoena, "there

by implying that he believed Wells would

testify and be subject to crossexamination." Newell also alleges that

Hoefling pointed out in his closing

argument that Newell did not challenge

Wells’s out-of-court statement "despite

the fact that Wells himself had not

testified and that, by virtue of the

State’s actions, Mr. Newell was deprived

of his opportunity to challenge that

statement by cross-examination."

 Newell’s petition raises a second Brady

argument: that Hoefling concealed

evidence of the state’s agreement with

Foote "governing his activities as a

confidential informant." Newell

elaborated on this claim in additional

pleadings before the district court,

alleging that Foote’s absence at trial

was in part the result of the state’s

assistance and that the state had the

ability to locate Foote at all times.

Hoefling, however, allegedly told the

jury during his opening statement that an

individual named David Schlomer had

threatened Foote, and later elicited

testimony to the effect that Schlomer was

a friend of Newell’s. Newell contends

that the implication of Hoefling’s state

ments was that Newell "had participated

in the transmission of threats to Brad

Foote and, thereby, contributed to his

absence at trial." But, according to

Newell, "[a]t the time he gave his

Opening Statement, [Hoefling] had no

basis for asserting that Foote had been

threatened by anyone including Mr.

Schlomer and, in fact, no such threats

were made."

 On December 31, 1997, the district

court, at Newell’s request, dismissed his

petition without prejudice on the ground

that he had presented a "’mixed’ petition
in the sense that some of his habeas

claims have been exhausted in the Indiana

courts, while other claims are now being

litigated in the Indiana courts through a

successive petition for post-conviction

relief." (More precisely, Newell had

pending a motion for leave to file a

successive state post-conviction

petition.) Judgment was entered on

January 5, 1998.

 On September 8, 1998, the Indiana

appeals court denied Newell’s motion for

leave to file a successive postconviction petition, stating that "having

examined the Petitioner’s Petition for

Successive Post-Conviction Relief [the

court] finds that the Petition

conclusively shows that the Petitioner is

entitled to no relief." Over two months

later, on November 20, Newell returned to

federal court and moved to "redocket his

Petition for Writ of Habeas Corpus,

amending said Petition only insofar as

the Petition contains references to the

procedural status and disposition of his

Petition for Successive Post Conviction

Relief before the Indiana Court of

Appeals." On November 25 the district

court granted the motion and ordered that

the "judgment entered on the clerk’s

docket on January 5, 1998, is vacated and

the clerk shall reopen the action on the

docket."

 After further proceedings, however, the

district court determined that Newell’s

amended petition was untimely and

accordingly dismissed the case with

prejudice. The court first reasoned that

Newell’s original filing on April 24,

1997, missed the cutoff date of the

Antiterrorism and Effective Death Penalty

Act ("AEDPA") by one day. Alternatively,

the court held that, even if Newell’s

original petition was timely, his amended

one was not because it could not "relate

back" to the earlier filing date. The

court also purported to reach the merits

of the case and held that irrespective of

untimeliness Newell was not entitled to

relief because "the decisions of the

Indiana Court of Appeals--and principally

its decision affirming the trial court’s

denial of Newell’s [first] petition for

post-conviction relief . . . reasonably

applies the law and principles applicable

to Newell’s claims as established by the

Supreme Court of the United States." In

January 2001 this court granted a
certificate of appealability on three

issues: (1) whether AEDPA’s one-year

grace period ended on April 23 or April

24, 1997; (2) whether the district court

erred in dismissing Newell’s original

petition and whether his amended petition

relates back to the earlier filing date;

and (3) whether Newell’s constitutional

rights were violated by the prosecutor’s

misconduct.

II. Discussion

A. Timeliness

 AEDPA imposes a one-year statute of

limitations on habeas corpus petitions

brought by state prisoners, 28 U.S.C.

sec. 2244(d), but for prisoners whose

convictions became final prior to AEDPA’s

enactment on April 24, 1996, there was a

one-year grace period in which to file.

Lindh v. Murphy, 96 F.3d 856, 866 (7th

Cir. 1996), rev’d on other grounds, 521

U.S. 320 (1997). In holding that Newell’s

original filing on April 24, 1997, was

untimely, the district court relied on

the following language from Lindh, 96

F.3d at 866: "[W]e do not doubt that the

[Supreme] Court would give a plaintiff

who files after the enactment [of AEDPA]

a reasonable post-amendment time to get

litigation underway. . . . [R]eliance

interests lead us to conclude that no

collateral attack filed by April 23,

1997, may be dismissed under sec.

2244(d)." Later cases in this and other

circuits have also assumed, where the

date was not critical, that April 23,

1997, was the end of AEDPA’s one-year

grace period. E.g., Jones v. Bertrand,

171 F.3d 499, 500 (7th Cir. 1999);

O’Connor v. United States, 133 F.3d 548,

550 (7th Cir. 1998); Guenther v. Holt,

173 F.3d 1328, 1331 (11th Cir. 1999);

Brown v. Angelone, 150 F.3d 370, 375 (4th

Cir. 1998); Burns v. Morton, 134 F.3d

109, 111-12 (3d Cir. 1998); Calderon v.

U.S. Dist. Court for the Cent. Dist. of

Cal., 128 F.3d 1283, 1287 (9th Cir.

1997), overruled on other grounds by 163

F.3d 530 (9th Cir. 1998); United States

v. Simmonds, 111 F.3d 737, 746 (10th Cir.

1997).

 Notwithstanding Lindh, however, whether

AEDPA’s grace period ended on April 23 or

April 24, 1997, is still an open question

in this circuit. As we observed in United

States v. Marcello, 212 F.3d 1005, 1009
(7th Cir. 2000), the issue in Lindh (as

well as in cases from our sister circuits

proposing April 23, 1997, as the cutoff

date) was "not whether the deadline

should be April 23, 1997, or April 24,

1997, but rather whether prisoners whose

judgments of conviction had been

finalized well before the new law’s date

of enactment should be allowed to seek

collateral relief at all. None of these

cases discussed the rationale for setting

April 23 instead of April 24 as the

deadline." Our statement in Lindh that

the grace period ended on April 23, 1997,

was therefore dictum and does not control

our decision today.

 The general rule for computing time

limitations in federal courts is Federal

Rule of Civil Procedure 6(a), which

excludes from the computation "the day of

the act, event, or default from which the

designated period of time begins to run."

In Marcello we applied this rule to

AEDPA--specifically, to sec. 2255 para.

6(1), which provides that the one-year

limitations period for federal prisoners

will run in some cases from the date on

which the judgment of conviction became

final--and held that, for defendants who

try unsuccessfully to take their case to

the Supreme Court, the one-year time

limit begins to run the day after the

Court denies certiorari, thereby giving

defendants until the close of business on

the "anniversary date" of the denial to

file their habeas motion. Marcello, 212

F.3d at 1009-10; accord Bronaugh v. Ohio,

235 F.3d 280, 284-85 (6th Cir. 2000). We

have applied Rule 6(a) to calculate other

statutory time limits, e.g., Tribue v.

United States, 826 F.2d 633, 634-35 (7th

Cir. 1987) (Federal Tort Claims Act);

Pearson v. Furnco Constr. Co., 563 F.2d

815, 818-19 (7th Cir. 1977) (Title VII),

and in Marcello we hinted that it should

determine AEDPA’s cutoff date as well.

Marcello, 212 F.3d at 1009. We now

expressly hold what was implied in

Marcello: Rule 6(a) applies to the

computation of AEDPA’s grace period, and

so any habeas corpus petition filed on or

before April 24, 1997, is timely. This

step will bring us in line with every

other circuit that has directly addressed

the applicability of Rule 6(a) in this

context. Patterson v. Stewart, 251 F.3d

1243, 1245-46 (9th Cir. 2001); Hernandez

v. Caldwell, 225 F.3d 435, 438-39 (4th

Cir. 2000); Gould v. Jackson, No. 98-
1743, 2000 WL 303002, at *1 (6th Cir.

Mar. 14, 2000) (precedential under Sixth

Circuit Rule 28(g)); Rogers v. United

States, 180 F.3d 349, 355 & n.13 (1st

Cir. 1999); Moore v. United States, 173

F.3d 1131, 1133-35 (8th Cir. 1999);

Flanagan v. Johnson, 154 F.3d 196, 200-02

(5th Cir. 1998); Mickens v. United

States, 148 F.3d 145, 148 (2d Cir. 1998);

see also United States v. Cicero, 214

F.3d 199, 202 (D.C. Cir. 2000) (adopting

April 24, 1997, as cutoff date without

expressly discussing application of Rule

6(a)); Towns v. United States, 190 F.3d

468, 469 (6th Cir. 1999) (same).

 But this does not end the timeliness

inquiry. Anticipating that reasonable

jurists might differ as to whether

AEDPA’s cutoff date was April 23 or April

24, the district court went on to hold

that, even if Newell’s original petition

was timely, his amended petition filed on

November 25, 1998, was not. The district

court seemed to proceed along the follow

ing analysis: (1) assuming the original

petition was timely, its filing tolled

the statute of limitations from the

filing date (April 24, 1997) to the

dismissal date (December 31, 1997); (2)

the statute was running again from the

dismissal date to the filing date of the

amended petition (November 25, 1998); (3)

Newell’s motion for leave to file a

successive post-conviction petition was

not a "properly filed" application within

the meaning of sec. 2244(d)(2), see

Tinker v. Hanks, 172 F.3d 990 (7th Cir.

1999), vacated by 531 U.S. 987 (2000),

reinstated by 255 F.3d 444 (7th Cir.

2001); (4) Newell’s amended sec. 2254

petition therefore did not "relate back"

to the date of the original filing

because to hold otherwise would "permit a

person in Newell’s position to circumvent

the reasoning of Tinker"; and (5) even if

Newell’s original petition were deemed to

have been stayed rather than dismissed,

his "rearrival" in the case more than

sixty days after the state court denied

his motion for leave to file a successive

petition was impermissible.

 There are several problems with this

analysis. First, the district court

mistakenly assumes that the filing of a

case stops the running of the statute of

limitations even if that case is later

dismissed without prejudice. Elmore v.

Henderson, 227 F.3d 1009, 1011 (7th Cir.
2000) (if a case is dismissed without

prejudice, the statute of limitations is

deemed to have continued running from

whenever the cause of action accrued,

without interruption by the filing of

that case). The district court’s analysis

also incorrectly employs "relation back"

principles rather than tolling

principles. The court proceeds along the

assumption that Newell’s original

petition was dismissed, but if that is

the case, the "relation back" doctrine

simply does not apply. Neverson

v.Bissonnette, 261 F.3d 120, 126 (1st

Cir. 2001) ("relation back" doctrine

inapplicable where dismissal of initial

habeas corpus petition left nothing for

the new petition to relate back to); see

also Marsh v. Soares, 223 F.3d 1217,

1219-20 (10th Cir. 2000) (collecting

cases). Rather, if Newell’s first

petition was dismissed, the court should

have utilized tolling principles, as

discussed generally in Tinker, 174 F.3d

at 990-91.

 But these errors are of little import.

The crucial flaw in the decision is the

district court’s not recalling that, in

its November 25, 1998 order, it already

had vacated the judgment dismissing

Newell’s original petition and allowed

the amended petition to be redocketed

under the same cause number. And though

the state argued at oral argument that

the district court abused its discretion

in vacating its earlier dismissal, we

conclude that the court’s decision was

entirely proper. When dismissing Newell’s

first petition, the district court did

not have the benefit of our decisions in

Freeman v. Page, 208 F.3d 572, 577 (7th

Cir. 2000), and Tinker, 172 F.3d at 991,

which suggest that the federal action

should have been stayed, not dismissed,

while the Indiana court ruled on Newell’s

pending motion. See also Neverson, 261

F.3d at 126 n.3; Zarvela v. Artuz, 254

F.3d 374, 380 (2d Cir. 2001); Post v.

Gilmore, 111 F.3d 556, 557-58 (7th Cir.

1997). By vacating the dismissal, the

district court effectively converted it

into a stay; this could not have been an

abuse of discretion because we now know

that staying the action was the right

step to take in the first place.

 Because Newell’s initial filing was, in

effect, never dismissed, the tolling

principles discussed in Tinker are
inapplicable. Rather, we are left with a

much simplified situation: Newell filed

his original petition on April 24, 1997,

and with leave of the district court

amended that petition on November 25,

1998. The only question then is whether

the amended petition (which supersedes

the first, Kelley v. Crosfield Catalysts,

135 F.3d 1202, 1204-05 (7th Cir. 1998))

"relates back" to the initial filing

date. See Fed. R. Civ. P. 15(c).

 Rule 15(c) permits relation back where

the claims in an amended pleading are

based on the same core of facts advanced

in the original. Bularz v. Prudential

Ins. Co. of Am., 93 F.3d 372, 379 (7th

Cir. 1996). Here, Newell’s amended

petition is substantively identical to

his first--the only change reflecting the

disposition of his state-court motion--

and therefore falls within the scope of

the rule. See BCS Fin. Corp. v. United

States, 118 F.3d 522, 524 (7th Cir. 1997)

(amendments that merely correct technical

deficiencies in earlier pleading meet the

Rule 15(c) test and will relate back); 6A

Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure sec. 1497

(2d ed. 1990) (same). Granted, we have

not yet decided whether Rule 15(c)

applies to post-AEDPA habeas corpus

proceedings. We see no reason, however,

why it should not apply. Rule 11 of the

Rules Governing Section 2254 Cases in the

United States District Courts provides

that "[t]he Federal Rules of Civil

Procedure, to the extent that they are

not inconsistent with these rules, may be

applied, when appropriate, to petitions

filed under these rules." The sec. 2254

rules do not consider whether an amended

petition can relate back to the filing

date of the original; Rule 15(c) of the

civil-procedure rules therefore governs.

See Johnson v. United States, 196 F.3d

802, 805 (7th Cir. 1999) (because the

Rules Governing Section 2255 Proceedings

do not address amendments to motions for

collateral review, Federal Rule of Civil

Procedure 15(a) applies); Smith v.

Gilmore, 111 F.3d 55, 56 (7th Cir. 1997)

(Federal Rule of Civil Procedure 11

applies to sec. 2254 cases because

nothing in the Rules Governing Section

2254 Cases precludes its application).

Indeed, every other circuit that has

addressed whether Rule 15(c) should be

applied to post-AEDPA habeas corpus

proceedings has answered in the
affirmative. Woodward v. Williams, 263

F.3d 1135, 1142 (10th Cir. 2001); Fama v.

Comm’r of Corr. Serv., 235 F.3d 804, 814-

16 (2d Cir. 2000); Anthony v. Cambra, 236

F.3d 568, 576-78 (9th Cir. 2000); United

States v. Thomas, 221 F.3d 430, 435-36

(3d Cir. 2000); Mederos v. United States,

218 F.3d 1252, 1253-54 (11th Cir. 2000);

United States v. Pittman, 209 F.3d 314,

316-17 (4th Cir. 2000); United States v.

Craycraft, 167 F.3d 451, 457 & n.6 (8th

Cir. 1999).

B. Procedural Default

 Newell’s petition is timely, but the

state maintains that, even so, dismissal

was proper because Newell procedurally

defaulted his claims. It is true that

Newell did not present his claims on

direct appeal or in his first state postconviction proceeding; he did, however,

present them during his second postconviction proceeding. According to

Newell the parties litigated his second

petition "through [Newell’s] portion of

an evidentiary hearing," before realizing

that he had failed to comply with Indiana

Post-Conviction Rule 1(12), which

requires leave from the Indiana Court of

Appeals before filing a successive

collateral attack. Newell accordingly

moved for leave in December 1996, but the

appeals court declined to authorize

filing, stating that "having examined the

Petitioner’s Petition for Successive

Post-Conviction Relief [the court] finds

that the Petition conclusively shows that

the Petitioner is entitled to no relief."

See Indiana Post-Conviction Rule 1(12)(b)

("If the pleadings conclusively show that

the petitioner is entitled to no relief,

the court will decline to authorize the

filing of the [successive] petition.").

 The state argues that the Indiana

appeals court’s statement that Newell’s

successive petition "conclusively shows

that the Petitioner is entitled to no relief"

was an "adequate and independent state

ground" that bars Newell from raising his

claims on federal habeas corpus review.

But even if Newell procedurally defaulted

his claims, he could undoubtedly show

"cause" for the default if he has

evidence to support his underlying

allegations. See Crivens v. Roth, 172

F.3d 991, 995 (7th Cir. 1999) ("We will

not penalize [petitioners] for presenting

an issue to us that [they] were unable to
present to the state courts because of

the state’s misconduct."). And in any

event, we conclude that there was no

procedural default because the Indiana

Court of Appeals’ order does not "clearly

and expressly" rely on a state procedural

bar as the basis of its ruling. Harris v.

Reed, 489 U.S. 255, 263 (1989); Braun v.

Powell, 227 F.3d 908, 912 (7th Cir.

2000); Jenkins v. Nelson, 157 F.3d 485,

491 (7th Cir. 1998). Although the Harris

presumption applies only "when it fairly

appears that [the] state court judgment

rested primarily on federal law or was

interwoven with federal law," Coleman v.

Thompson, 501 U.S. 722, 739 (1991), we

find that that is the situation here.

Given Newell’s allegations that the state

concealed evidence necessary to his

claims, it does not "fairly appear" to us

that the Indiana appellate court’s

decision was based on a procedural bar.

See Indiana Post-Conviction Rule 1(8)

(any ground for relief not raised in

original post-conviction petition is

waived and may not be the basis for a

subsequent petition "unless the court

finds a ground for relief asserted which

for sufficient reason was not asserted or

was inadequately raised in the original

petition"). Indeed, before realizing that

Newell had failed to request leave to

file his successive petition, the Indiana

trial court had allowed that petition to

proceed to an evidentiary hearing,

suggesting that at least one state court

did not view Newell’s claims to be

procedurally barred./2 Because we

therefore have "good reason to question

whether there is an independent and

adequate state ground for the decision,"

Coleman, 501 U.S. at 739, the Harris

presumption applies, and procedural

default does not bar federal review of

Newell’s claims. See Fama, 235 F.3d at

810-11 (state court’s reliance on local

law was not clear from decision stating

that defendant’s claims were "either

unpreserved for appellate review or

without merit"); Jones v. Stinson, 229

F.3d 112, 118 (2d Cir. 2000) (no default

where, although state court set forth

factual predicate for finding waiver, it

did not clearly state its intention to

rely upon that ground); Wilkinson v.

Cowan, 231 F.3d 347, 352 (7th Cir. 2000)

(by stating that it was affirming

dismissal of post-conviction petition

"after careful review," state court

rendered merits judgment as to each claim
raised in that petition even if it did

not identify or discuss individual

claims); Thomas v. Davis, 192 F.3d 445,

453-54 (4th Cir. 1999) (no default where

there was no indication of how state

court disposed of claim other than its

general announcement that the judgment

below had been "reversed"); Kappos v.

Hanks, 54 F.3d 365, 370 (7th Cir. 1995)

(no default where state court discussed

waiver principles but then proceeded to

address merits).

C. Merits

 In a last-ditch effort, the state argues

that, even if Newell’s claims are timely

and are not defaulted, they are otherwise

without merit. Specifically, the state

contends that

Even if the State had entered into . . .

agreements with Wells and Foote, neither

Wells nor Foote testified at trial.

Newell fails to point to any Supreme

Court case to support his assertion that

the state’s agreement with person [sic]

who does not testify at trial is material

evidence. Such evidence would be relevant

only to show Wells’s and Foote’s bias.

Because neither testified, their

credibility was not at issue, and it

cannot be said that such evidence was

material to Newell’s guilt.

This argument is circular. In essence the

state contends that it can deny a

defendant the benefit of favorable

witness testimony and later use the

absence of that testimony as the reason

why there was no constitutional

violation.

 The district court also believed that

Newell was not entitled to relief on the

merits, specifically because "the

decisions of the Indiana Court of

Appeals--and principally its decision

affirming the trial court’s denial of

Newell’s [first] petition for postconviction relief . . . reasonably

applies the law and principles applicable

to Newell’s claims as established by the

Supreme Court of the United States." But

whether the Indiana Court of Appeals was

correct to affirm the denial of Newell’s

first post-conviction petition is not

relevant--it was not until his second

post-conviction proceeding that Newell

raised the claims he raises here.
 Contrary to the state’s assertions,

Newell has at least two colorable Brady

arguments: that the state failed to

disclose Wells’s pretrial statements

exonerating Newell and failed to disclose

evidence of Wells’s cooperation

agreement. The state’s case depended

almost entirely on officer McGee’s

testimony that Wells told him that he got

the cocaine from Newell. Had Wells

testified that he did not make that

statement and that the cocaine was not

even Newell’s, the state would have been

left with only the phone conversation to

link Newell to the charged transaction

(assuming Wells would have been found

credible). Thus, if Newell can prove his

allegations, we believe that he might

also be able to show a reasonable

probability that the result of his trial

would have been different if the

suppressed evidence had been disclosed,

which makes that evidence material for

Brady purposes. See Giglio v. United

States, 405 U.S. 150, 154-55 (1972)

(evidence of government’s cooperation

agreement with witness was material under

Brady where government’s case depended

almost entirely on that witness’s

testimony); Crivens, 172 F.3d at 996-99

(state violated Brady by failing to

provide criminal records of witness whose

testimony formed "heart" of state’s

case); Chavis v. North Carolina, 637 F.2d

213, 223 (4th Cir. 1980) (state violated

Brady by failing to disclose pretrial

statement of key state witness that

contained crucial impeachment material).

 Newell may also be able to establish a

due process claim based on state

interference with defense access

(sometimes couched as a Sixth Amendment

right to compulsory process). It is wellsettled that substantial government

interference with a defense witness’s

free and unhampered choice to testify

violates the defendant’s due process

rights. E.g., United States v. Vavages,

151 F.3d 1185, 1191 (9th Cir. 1998)

(prosecutor threatened to withdraw

witness’s plea agreement in her own

unrelated criminal prosecution if she

testified in support of defendant’s

alibi); Freeman v. Georgia, 599 F.2d 65,

69 (5th Cir. 1979) (police detective

concealed whereabouts of witness);

Lockett v. Blackburn, 571 F.2d 309, 314

(5th Cir. 1978) (prosecutor sent
witnesses out of state before trial);

United States v. Morrison, 535 F.2d 223,

225-28 (3d Cir. 1976) (prosecutor

repeatedly warned and intimidated

prospective defense witness about

possibility of perjury charges if she

testified falsely); see also Webb v.

Texas, 409 U.S. 95 (1972) (state trial

judge intimidated sole defense witness

about possibility of perjury charges).

Here, by offering to dismiss the cocaine

charge pending against Wells if he did

not testify in Newell’s defense, the

prosecutor effectively hampered Wells’s

free choice to testify at trial and

thereby infringed Newell’s right to have

Wells give evidence in his favor. And

Wells’s absence at trial might have been

material to the defense for the same

reasons discussed above in the Brady

analysis.

 Newell’s allegations regarding Foote

present a harder case. Potentially,

Newell could have a viable claim under

Webb and its supporting cases: that the

state violated his due process rights by

deliberately concealing Foote’s

whereabouts and sending him out of the

state before trial. But Newell has failed

to show how Foote’s absence at trial

prejudiced him in any way. That failure,

however, could be due to the fact that

the district court’s conclusion regarding

timeliness prevented Newell from

developing the factual bases of his

claims.

 In such circumstances the appropriate

step is to remand the case for further

proceedings (including an evidentiary

hearing, if necessary) so that the

district court can determine the merits

of Newell’s claims in the first instance.

See Rice v. Bowen, 264 F.3d 698, 702 (7th

Cir. 2001) ("Because the district court’s

conclusion with respect to timeliness had

the effect of cutting off further

development of the record and issues

there . . . the proper step is to remand

the case to that court for further

proceedings."); see also Lockett, 571

F.2d at 314 (finding due process

violation where state made witnesses

unavailable to testify and remanding for

district court to determine whether their

unavailability was prejudicial to

defendant). We note that sec. 2254(e)(2),

which circumscribes a federal court’s

ability to hold an evidentiary hearing if
the petitioner has "failed" to develop

the factual record in state court, does

not apply here because Newell’s claims

went undeveloped through no fault of his

own. Williams v. Taylor, 529 U.S. 420,

434-35 (2000) (opening clause of sec.

2254(e)(2) does not apply where claim was

undeveloped in state court because

prosecution concealed facts); Burris v.

Parke, 116 F.3d 256, 258-59 (7th Cir.

1997) ("To be attributable to a ’failure’

under federal law the deficiency in the

record must reflect something the

petitioner did or omitted. . . . [W]e

think that the word ’fail’ cannot bear a

strict-liability reading, under which a

federal court would disregard the reason

for the shortcomings of the record.").

III. Conclusion

 Accordingly, the judgment of the

district court is VACATED, and the case is

REMANDED for further proceedings

consistent with this opinion.

FOOTNOTES

/1 After he was released on bond on the cocaine

charge, Wells was arrested on new charges of

burglary and possession of stolen property. The

six-year sentence he received was for those new

charges, both Class C felonies; the cocaine

charge, a Class A felony, was dismissed. Wells

testified in his May 1996 deposition that Hoefling was the prosecuting attorney at his sentencing hearing.

/2 The trial court did not issue a written decision

regarding Newell’s successive post-conviction

petition. This case therefore does not fall

within the ambit of Ylst v. Nunnemaker, 501 U.S.

797 (1991), in which the Supreme Court held that,

if there is a reasoned decision by a lower state

court clearly denying a petition on procedural

grounds, a subsequent ambiguous order of affirmance by the state supreme court will not lift

the procedural bar.