Full opinion text
MEMORANDUM & ORDER PATEL, Chief Judge. Petitioner Glenn “Buddy” Nickerson is an inmate of the California state prison at Los Angeles, California, following his conviction on two counts of murder and one count of attempted murder. On December 28, 1998, Nickerson filed a petition for a writ of habeas corpus with this court challenging his conviction on grounds of ineffective assistance of counsel and police and prosecutorial misconduct which deprived him of due process. In support of his petition, Nickerson presented a variety of evidence not brought forth at his trial to show that he is factually innocent of the crimes charged. The court granted Nickerson’s request for an evidentiary hearing on his petition. After having reviewed the record, the testimony and evidence submitted at the evidentiary hearing and the parties’ arguments and briefs, and for the reasons set forth below, the court rules as follows. BACKGROUND Along with two codefendants, Murray Lodge and Dennis Hamilton, Nickerson was charged with the murders of John Evans and Mickey Lee King and the attempted murder of Michael Osorio. Nickerson and Hamilton were tried jointly in 1987. Because the State of California sought the death penalty against Lodge, he was tried in separate proceedings in 1992. I. Evidence Presented at Nickerson’s Trial Because both the procedural issues raised by the petition and Nickerson’s substantive claims require analysis of the evidence presented against Nickerson at trial, the court first summarizes the state’s original case and Nickerson’s defense. A. The Crime Scene At about 1:00 a.m. on September 15, 1984, Santa Clara County Sheriff deputies responded to shots fired at an address on Ronda Street in San Jose, California. RT 5666. When they arrived, they found John Evans lying unconscious in his front entryway with a severe head wound. RT 5672-73. Evans never regained consciousness. RT 5673. The officers entered the house and found Michael Osorio in the hallway and the body of Mickie Lee King in the kitchen. RT 5677. Both men had wounds to the back of their heads and their hands were handcuffed behind their backs. RT 5677-79. Twenty minutes later, Sergeant Joseph Kirby and his police dog, Ajax, arrived at the crime scene. RT 5797. Kirby noticed that Osorio had a head wound and was acting in a dazed manner. RT 5800, 5802. Osorio identified himself to Kirby. RT 5827. In response to Kirby’s questions about who had hurt him, Osorio answered, “I don’t know who they were. We were asleep. I don’t know them.” RT 5827, Exh. 2 (Kirby notes). After a search of the area, Kirby discovered a fingertip of a bloodstained glove underneath a car in Evans’ driveway. RT 5803. Ajax picked up a human scent from the glove and began following a trail of blood down Ronda street in front of Evans’ house, left on Union Street and into the Lakeside Apartment Complex off of Union. RT 5803-05. In the apartment complex driveway Ajax found a rubber glove and a cloth glove with the same scent he was following. RT 5805-06. There was a large amount of blood on the driveway and the wall of a nearby garage and a bloody handprint on an adjacent dumpster. RT 5807. The trail led to the front of the complex on Heimgartner Street where the blood spatters ended. RT 5807-08. Ajax followed the scent trail left on Heimgartner and into a second driveway where he ultimately lost the scent at a grassy area. RT 5807-08. A resident of the complex came out and told Kirby that he had seen two people running into a pond area and that one appeared to be holding a cloth to his abdomen. RT 5819-20, 5832-33. Ajax picked up a second scent at the apartment complex’s pond area. RT 5820. He followed it to the driveway of the complex off Union and to the rear yard fence of Evans’ next door neighbor. RT 5820-23. A number of .357 caliber shell casings were found along the scent trail. RT 5821, 5823. Evidence technicians photographed the crime scene and gathered fingerprints, bullet fragments and casings, a number of' handguns, a briefcase with money and drugs and other physical evidence. RT 5885-6046. None of the physical evidence gathered at the scene was linked with Nickerson. No gun used at the scene was ever found with Nickerson or otherwise associated with him. No fingerprints or clothing found at the scene were matched with Nickerson. The blood trail along Ronda Drive and Union Avenue did not match Nickerson’s blood type, and prosecutors argued in Nickerson’s trial that the blood trail was left by another unidentified perpetrator. B. Nickerson’s Motive At trial, the prosecution argued that the killings were committed by Nickerson as part of a robbery and in revenge for the shooting of Nickerson’s brother by Evans. Less than a month before Evans’ death, Buddy’s brother, Nicky Nickerson, went to Evans’ house with a shotgun. RT 6598-99. Nicky Nickerson seized Evans’ live-in girlfriend, entered the home holding her at gunpoint, and demanded that Evans come out and speak with him. RT 6598-99. A scuffle ensued in which Evans shot Nicky Nickerson in the chest and literally kicked him out of the house. RT 6600-01. The prosecution presented testimony that Nickerson had made threats against Evans. Deputy Sheriff Tony Silva testified at trial that on the night that Nicky Nickerson was shot, Buddy Nickerson told Silva that “I will give you people thirty days to take care of it or else I will,” although Silva failed to include this statement in his report. RT 7530. Barbara Payne, Evans’ live-in girlfriend who was present when Nicky Nickerson was shot, testified that on August 25, 1984, she answered the phone at Evans’ house. She spoke with someone she believed to be Buddy Nickerson who told her, “Tell John he has 31 days.” RT 6608. Deputy Sheriff Edward Atlas testified that on August 31, 1984, Nickerson told him that Evans had set Nickerson’s truck on fire while Nickerson was in a nearby restaurant. RT 6418. , Nickerson told Atlas that “if Evans didn’t leave him alone there would be war” and that Atlas should relay that message to the sheriffs’ detectives. RT 6421-22. Judy Bryant testified that prior to the shootings, she heard Nickerson discuss his wish for revenge. RT 6473. In response to the evidence of motive, Nickerson sought to establish that he and Evans had worked out them differences over Nicky Nickerson’s shooting. A bartender, James Lumley, testified that he saw John Evans and Nickerson after the Nicky Nickerson shooting and that they talked and drank together for thirty or forty minutes. RT 7648-49. Barbara Payne also testified that a few days before his death, Evans told her that he and Nickerson had resolved the problems between them and that there would be no more trouble. RT 7509. Michael Osorio, one of the victims, testified that Evans told him that his problems with Nickerson had been resolved. RT 7208-09. C. Eyewitness Identifications of Nickerson At Nickerson’s trial, two eyewitnesses positively identified Nickerson and placed him at the scene of the murders. Michael Osorio, one of the victims, testified that Nickerson was one of the masked men who broke into the house. Brian Tripp, a resident of the nearby apartment complex, identified Nickerson as a man he saw fleeing the scene. Another witness, nearby resident Sharon Silberhorn, did not see anyone the night of the murders, but identified Nickerson as a man that she saw in a car near Evans’ house the evening prior to the shootings. 1. Michael Osorio Michael Osorio, the sole survivor of the shooting, gave the police the only eyewitness account of the events inside Evans’ home. Osorio testified at trial that on the evening of September 14, 1984, he drove from Sacramento to San Jose to help Evans move his car painting equipment to Sacramento. RT 7134. A good friend of Evans, Osorio had taught Evans how to manufacture methamphetamine. RT 7122, 7127. When Osorio arrived at Evan’s house, he met Evans’ mother and sister, Phyllis, who were visiting. RT 7139-40. Mike Riley and Miekie Lee King, Evan’s half-brother, were also there. RT 7139-40. At some point thereafter, Evans’ mother and sister left. RT 7142. After receiving a phone call, Evans told Osorio that he had to go somewhere and would be right back. RT 7142-43. Evans did not say where he was going or who called. RT 7143. Evans asked Osorio to wait for him to return. RT 7142-43. Riley and Evans, both armed with guns, left in separate cars. RT 7143-44. Osorio fell asleep on the couch and was later awakened by the sound of a door being kicked in. RT 7147. Someone rushed into the room and hit Osorio on the head with something that felt like wood. RT 7148. Osorio was pulled off the couch onto the floor and handcuffed with his arms behind his back. RT 7148-49. Osorio testified that he next heard the sound of dogs attacking someone or something and heard King yelling and telling someone not to shoot. RT 7149-50. He heard the sounds of someone being beaten and saw King being brought into the living room. RT 7150. Osorio testified that King was then shoved to the floor next to him, face down with his hands cuffed behind his back. RT 7151. King said, “Come over here, buddy, and loosen the fucking cuffs.” RT 7151. Osorio saw a man wearing a ski mask over his head go over to King. RT 7151. Osorio heard King being hit in the head with what sounded like a gun. RT 7154. King was later moved to the kitchen. RT 7167. Although all of the intruders wore ski masks at all times, Osorio felt that he could distinguish at least three different attackers. RT 7161. Osorio never saw more than three masked men at any one time. RT 7160. The masked intruders asked Osorio who Evans was with, where he went, and when he would be back. RT 7154. Osorio told them that Evans went to Reno for the weekend. RT 7155. Osorio was hit in the head in response. RT 7155. Osorio felt what he thought was a gun put to the back of his head. RT 7168. At some later point, Osorio heard a car pull up. RT 7169. Someone turned down the volume on the television set and said, “He’s here.” RT 7169. Osorio does not remember what happened after that. RT 7169. Osorio stated at Nickerson’s trial that the masked man who responded to King’s request to loosen his cuffs was “heavy-set,” and based on this he “associated that person as being Buddy Nickerson.” RT 7151. Osorio did not notice anything about this person other than his build. RT 7228. Osorio described his level of certainty about his identification of Nickerson as ten out of ten. RT 7172. Various pieces of evidence emerged at trial which undermined Osorio’s identification of Nickerson. Osorio had been hit on the head repeatedly during the break-in and was eventually shot in the head. As such, his ability to remember the events of the evening became an issue at Nicker-son’s trial. Osorio testified to being groggy throughout the episode due to repeated blows to the head delivered by the intruders. RT 7148-49, 7154-56, 7162, 7165. An expert in physiological psychology, Dr. Ralph Kiernan, Ph.D., testified that while Osorio’s type of injury did not generally result in loss of pre-trauma memory, specific evaluation of loss of an individual’s pre-trauma memories was impossible. RT 6165-66, 6174. Dr. Kiernan also testified that soon after a trauma the brain would be “at its maximally dysfunctional state” and responses might be less reliable than some months later. RT 6169-70. Osorio testified that when he first got out of the hospital, he could not remember his own name or what day it was, although his memory was constantly getting better. RT 7159. Throughout his testimony, Osorio was unable to remember much of his prior testimony or statements as a result of brain damage from his injury. He repeatedly testified as to the problems with his memory. E.g., RT 7198-7202. Osorio also testified that the district attorney’s office had held “recollection refreshing sessions” prior to trial during which time Osorio was read his prior testimony and asked about it. See RT 7226, 7259, 7261. Significant aspects of Osorio’s testimony changed over time, such as whether Evans had given him a physical description of petitioner or shown him photographs of the Nickersons prior to the shootings, RT 7235-36, 7239-41, 7264-67; whether the masked man he identified as Nickerson held a pistol, a shotgun, or no weapon at all, RT 7174, 7256-57; and whether he had been influenced by King referring to an attacker as ‘buddy,’ RT 7259. Another issue that arose in Osorio’s testimony was whether he knew Nickerson well enough at the time of the shootings to have identified him. Osorio had previously seen Nickerson only once, about two years before the incident when Nickerson was doing some yardwork for Evans, and did not remember being introduced to him or looking at his face. RT 7170, 7228-29. Osorio could not even remember whether Nickerson had been working with his shirt on or off. RT 7229. The defense also argued that due to brain trauma caused both by the shooting and the brain surgery, Osorio had been susceptible to the suggestions by the two lead detectives, Sgt. Jerry Hall and Sgt. Brian Beck, that Nickerson had been an attacker. Osorio’s first statement at the scene was that the crime occurred when he was in bed and that he did not know what happened. RT 5827. He told one officer who questioned him, “I don’t know who they were. We were asleep. I don’t know them.” RT 5827. At this point, he was alert enough to give officers his name and answer questions. When first interviewed at the hospital later that day, Osorio told Detective Hall only that the intruders were white male adults of average builds wearing ski masks. RT 7469. Osorio’s initial identification of Nicker-son apparently occurred at the hospital the following day, after Osorio had undergone brain surgery for the gunshot wound to his head. RT 7474-75. Although Osorio testified that he did not remember this identification, RT 7220, 7175-76, Detective Hall testified that Osorio “emphatically” identified Nickerson as one of the perpetrators, RT 7474. Osorio was not shown photographs at this interview, but simply named Nickerson as one of the intruders. Detective Hall later testified at Lodge’s trial that Osorio made the identification from personal knowledge of Nickerson’s appearance. LT1 9421. Beck and Hall did not tape record the interview, LT1 9422, nor were contemporaneous notes referred to either in state court proceedings or in the proceedings in this action. Osorio did not remember the interview or seeing Beck and Hall in the hospital, but only remembered Beck’s voice. RT 7254-55. The defense suggested that Osorio might have identified Nickerson in his injured state because he had been expecting trouble from Nickerson at the time of the shooting. Osorio testified that in the weeks prior to the murders, Evans had told Osorio that he was concerned about the Nickersons and had shown him pictures of the brothers. RT 7172. Osorio stated in his testimony that Evans’ fears “definitely affect[ed] me feeling that it was Buddy Nickerson that was there.” RT 7172. His identification was also influenced by the fact that Evans’ girlfriend told him that she thought that Nickerson had made threatening phone calls to Evans prior to the shootings. RT 7283. Osorio also testified that he recognized Nickerson’s nickname when King addressed one of the captors as “buddy.” RT 7259. 2. Brian Tripp Brian Tripp testified at Nickerson’s trial on March 4, 1987, two and a half years after the shootings. At the time of the trial, Tripp was a Colusa County Deputy Sheriff and had been so employed for the previous eight months. RT 6429. At the time of the murders, Tripp lived at a condominium off Heimgartner street, just a block from Evans’ house. RT 6429. Tripp testified that while he was in the parking lot of the apartment complex the night of the shootings, a man ran past him. RT 6433. The man was hunched over as if in pain and was holding a towel or a jacket to his stomach. RT 6433-35. He stopped about fifteen feet past Tripp, looked around, unhunched and looked up at the sky, turned in a full circle, then looked at Tripp and asked, “Where the fuck am I?” RT 6436-37. Tripp responded that if he did not belong, he should leave. RT 6437. The man ran back past Tripp, then ran south between the condominium buildings. RT 6437-38. Finding his way blocked by a large fence, the man turned back and ran off to the north. RT 6438. A week later, after he learned of the shootings, Tripp contacted the sheriffs department and later spoke with Sergeants Beck and Hall. RT 6440-41. During his testimony, Tripp then identified the man he had seen as Nickerson, who was present in the courtroom. RT 6443. Tripp stated in court that he was “positive” that Nickerson was the man he saw. RT 6443. After consulting Beck and Hall’s notes, Tripp remembered initially describing the man to the detectives as five feet eleven inches to six feet tall, 190 to 200 pounds with brown shoulder length dirty hair, a moustache, wearing a dark colored, button up long sleeve untucked shirt. RT 6442. On cross examination, Tripp admitted that Nickerson did not fully fit the description he gave to Beck and Hall. RT 6462. He nonetheless maintained that Nickerson “resembled” the man. RT 6462. Tripp stated that he was “positive” that the man he saw was Nickerson, and reaffirmed pri- or testimony that he was “nine out of ten” in his certainty in his identification. RT 6443, 6452. Tripp also acknowledged in his testimony that Beck and Hall had shown him a photographic line-up prior to any in-person identification of Nickerson. RT 6448. Tripp identified three or four of the photographs as resembling the man he saw that evening. RT 6449. Nickerson was one of the photographs Tripp picked out as a possible match. RT 6451. Tripp stated, however, that it was easier for him to identify a person in person than from photographs, and that upon seeing Nickerson in court he immediately identified him as being the man he had seen. RT 6451, 6452. 3. Sharon Silberhorn The night before the shootings, Sharon Silberhorn, a resident of Lakeside Condominiums, returned home at about 10:30 p.m. RT 6512. She observed an older noisy car pull into the complex and drive slowly around the parking area. RT 6512-13. Its occupants appeared to be pointing to various things. RT 6514. Silberhorn described the passenger as a heavyset male with sandy bushy hair, sideburns and a goatee, ponytail, and a tattoo on his right arm. RT 6515. The next night, Silberhorn was awakened by yelling in the parking lot. RT 6516. She heard what she thought was the same loud car she had seen the night before. RT 6516. She did not get out of bed and did not claim to see anything the night of the murders. Silberhorn testified that she could identify the car by sound because she had “worked around automobiles.” RT 6517. On cross-examination, Silberhorn admitted that she worked as the finance manager of an automobile dealership. RT 6549. At trial, Sharon Silberhorn identified Nickerson as a passenger in the loud “low-rider” car she saw at the Lakeside Apartment Complex on the night before the shootings. The day after the shooting, Detectives Beck and Hall showed Silberhorn a series of photographs. RT 6536. Silberhorn picked out three photographs as resembling the man she saw and focused on one in particular, though no testimony was presented as to which photographs she picked out. RT 7472, 6537. Silberhorn testified that she initially identified Nickerson three weeks before she testified at Nickerson’s preliminary hearing. RT 6538. According to Silberhorn, she was at the Municipal Court with Sergeants Beck and Hall and Inspector McCurdy. RT 6539. Silberhorn testified that she was “wandering off looking for a drinking fountain” and began looking in courtrooms. RT 6539, 6560. In the second courtroom, she saw Nickerson and “realized” that he was the man she had seen the night before the shootings. RT 6539-40, 6561. Inspector McCurdy of the Santa Clara District Attorney’s office contradicted Silberhorn’s account and testified that her intial in-person identification was not spontaneous. He stated that prior to identifying Nickerson, Silberhorn asked if “the guy was in the courtroom” and then asked permission to look in the courtroom. RT 7498, 7500, 7503. Inspector McCurdy told Silberhorn that Nickerson was in the courtroom and that she could look in. RT 7500. Nickerson was sitting at the counsel table dressed in red prison clothes with chains on. RT 7501. Nickerson was the only defendant in the courtroom at the time. RT 7501. After Silberhorn looked in the courtroom, she told McCurdy that seeing him scared her and that she was fairly certain it was the man she saw. RT 7501. Silberhorn denied Inspector McCurdy’s account. RT 6540 — 41, 6560-61. D. Incriminating Statements Made To Judy Bryant Judy Bryant testified that in the early morning hours of the Sunday or Monday following the Evans shootings, Nickerson was over at her house talking on the telephone to someone she presumed to be his mother. RT 6475-77. Bryant testified that Nickerson appeared concerned that his mother would not be taken care of, and that he said that “it had to happen.” RT 6477. After the court recessed for lunch following cross-examination of Bryant, Bryant indicated to prosecutors that she had further relevant information. The prosecution recalled Bryant to the stand in the afternoon for further examination. Judy Bryant then gave surprise testimony that Nickerson made inculpatory statements to a group of friends. Judy Bryant testified that during the early morning hours of Sunday, September 16, 1984, she took a van ride with a group of people to “go pick up some drugs that was owed to them.” RT 6490-91, 6494-95. Nickerson was a member of the group. RT 6493. The discussion turned to the Evans homicides. RT 6491. Judy Bryant testified that Nickerson made “minor comments” to the effect that “they had to die” and “you should have seen his face or something like that.” RT 6491-92. E. Other Witnesses A number of witnesses heard the shots at Evans’ house and saw men fleeing the scene who did not fit Nickerson’s description. One saw a thinly built male about five feet eight inches tall with shoulder length hair run across Evans’ property, then saw a gold van traveling east on Ronda, away from Union, with its headlights off. RT 5740-57 (testimony of Judy Schattie). Another saw a man of similar height with short hair walk slowly down Ronda then get into a van that was traveling down Ronda, away from Union, with the side door open. RT 5853-56 (testimony of Mary Baker). A witness standing on the corner of Union and Ronda saw a man five feet eight inches tall with medium build and shoulder length hair run past him, hunched over and holding his waist, followed by another man of similar height and build. RT 6064-76 (testimony of Jeffrey Ottoveggio). A resident of Heimgartner Lane, a street about one block south of Ronda, heard shots and saw a man of medium height and build climbing over the fence behind a neighboring condominium complex. RT 5698-5705 (testimony of George Gutierrez). One witness, Robert Schattie, heard the sound of gunshots coming from Evans’ house. RT 5719. He did not see anyone running from Evans’ residence after the shots. RT 5735. He reported this version of the events to the police shortly after the shootings. RT 5720. A few days later, an image came to Schattie “in the nature of a day dream,” and he contacted the police to supplement his story. RT 5721, 5727. Schattie testified that in this “day dream,” he looked out the front window of his house and saw a person near Evans’ car. RT 5723. Mr. Schattie, himself a man of about 240 pounds, described the figure he saw as over 200 pounds, or as big as he was. RT 5728. The man was over six feet tall, with sandy colored hair and a full beard. RT 5728. The figure held a “long gun,” such as a shotgun or rifle, which he fired twice. RT 5722, 5725. The person then calmly walked from the car into the street. RT 5727. Schattie never identified the man he saw as Nickerson. In the daydream, Schattie also heard two more gunshots that sounded as if they were from outside Evans’ home. RT 5721-22. On cross-examination, defense counsel inquired further about the description of the memory as a “day dream,” asking Schattie whether the vision was “something that you made up or something you remember from this night in your neighborhood?” RT 5734. Schattie replied that he did not know. Id. This court finds nothing in the record showing that the prosecution presented physical evidence indicating that a rifle or shotgun was fired outside Evans’ house. In its lengthy closing, the prosecution devoted only a few sentences to Mr. Schattie’s testimony. The prosecutor referred to him as “the dream witness” and suggested that the vision might have resulted from the fumes from Evans’ methamphetamine lab pervading the neighborhood. RT 7727. F. Nickerson’s Alibi Nickerson presented alibi evidence that he was sleeping in his truck in a friend’s driveway at the time of the shootings. The testimony is summarized below. During the day of September 14, 1984, Nickerson was with a friend, Keith Banks, driving around and drinking. RT 6695-9G. That evening they were at the home of Keith’s brother, Dion, where there was a party for Dion’s wife, Kristin. RT 6658, 6683. Nickerson and Keith left the party at 11:00 p.m. RT 6697. Keith walked home and Nickerson, who felt sick, got into his truck parked in Dion and Kristin Banks’ driveway. RT 6697, 6662. When Dion and Kristin Banks left the party at around 11:30 p.m. to drive a friend home, Nickerson was in his truck. RT 6662. Kristin Banks estimated they returned home between 12:00 a.m. and 12:30 a.m., RT 6664, while Dion estimated their return between 12:30 a.m. and 1:00 a.m. RT 6670, 6687. On her way back into the house, Kristin Banks spoke briefly with Nicker-son, who was still in his truck with his feet sticking out the window and his boots inside the house. RT 6664. When she awoke the next morning, Nickerson was still there and his boots were still inside the house. RT 6692. Cindy Price and Ralph Banks spent from nine or ten o’clock, RT 7404, until the early morning hours, RT 7408, talking in Price’s truck twenty feet from Nickerson’s vehicle. RT 7407. She saw Nickerson get into his truck barefoot about an hour after she and Ralph Banks went outside. RT 7405. Price did not see Nickerson leave his truck. RT 7407. Ralph Banks, who occasionally went inside to use the bathroom or get another drink, testified that he never saw Nickerson leave the truck. RT 7431-32. Price saw Nickerson talking on the telephone at the Banks’ house the next morning. RT 7409. G. Evidence Against Other Defendants at Trial At Nickerson and Hamilton’s joint trial, the prosecution introduced a number of inculpatory statements by Hamilton and Lodge and physical evidence that tied both men, but not Nickerson, to the scene of the crime. 1. Testimony of Norma Goytia At trial, the prosecution introduced the testimony of Norma Goytia that Lodge, Hamilton and a third man “Bob” had access to a gun and were seen together on the day of the shootings. Hamilton, Goytia’s ex-husband, often stayed at her house with Lodge. RT 6719. On the day of the shootings, she received two or three phone calls for Lodge from a man named “Wolf.” RT 6738. Later that day, Hamilton argued with Goytia over her .32 caliber Walther. RT 6739. Hamilton said that he needed it for “backup.” RT 6741. Hamilton left and returned thirty to sixty minutes later with a man named “Bob.” RT 6743. At some point, they left the house. RT 6745. Goytia left the house and went to a bar from 10:00 p.m. until 2:00 a.m. RT 6749. When she was returning to her car, Hamilton pulled up in his Buick Riveria. RT 6750. He told Goytia that her gun had - been involved in a homicide, that she should report it to the police as stolen, and that her house had been messed up. RT 6766. Hamilton said that he wanted it to appear that the gun had been taken in a robbery. RT 6773. Goytia returned home and called the police and reported the gun stolen. RT 6729, 6776. She eventually told Beck and Hall that this report was untrue. RT 6734. Two or three days later, Hamilton told Goytia that “Bob” had been shot five times and had obtained medical treatment for $1000. RT 6779-80. There had been a lot of confusion and her gun had been dropped. RT 6780. Hamilton did not mention Lodge and identified “Wolf’ as a Mend. RT 6780. Goytia assumed that Hamilton had learned the details from Lodge. RT 6833. Hamilton later told her that he had not been at the shootings. RT 6808. 2. Hamilton and Lodge’s Other Statements Bridget Welsh testified that Hamilton made incriminating statements to her. RT 6932. She denied'that she relayed to' Goytia a detailed confession by Hamilton in which he told her that Lodge set up the shootings; that the motive was to steal money and drugs; that no one was shot before Evans returned home; that someone “freaked out and started shooting”; that no one was supposed to get hurt; and that Hamilton ran and dropped Goytia’s gun. RT 6938. Beck interviewed Welsh and testified as to her statement about another incident in which Hamilton told her that he was involved in the homicides and that “[ejverything had gone haywire.” RT 7355. In June 1985, Wofford, Hamilton and Lodge were involved in an altercation with Quido D’Amico, a former police informant. RT 7050. Hamilton called out, “There is the rat,” and Lodge attacked him with his chain handcuffs. RT 7065-67. Lodge said, ‘We murdered two assholes already, one more ain’t going to make no difference.” RT 7068. Hamilton, sitting nearby, smiled. RT 7116. Lodge threatened to kill D’Amico if he reported the incident. RT 7071. Lodge also made several statements to deputy sheriffs. He told Deputy Leon Mason that his case involved a drug rip-off and that Nickerson and Wofford were not involved. RT 6877. He told Deputy Sheriff David Angarole that the people in jail for the crime were not involved. RT 6891. He specifically referred to Nickerson and Hamilton. RT 6895. Irene Cook testified that Lodge was the man who broke into her house with two guns the night after the murders. RT 6954-56, 6960. He showed her a two inch roll of money, RT 6960, demanded food and clothes, RT 6957, and indicated he was wanted by the police. RT 6958. He stole her car, which was later found in Idaho. RT 6959-61. II. Procedural History After their joint trial, the jury convicted both Nickerson and Hamilton on two counts of murder and one count of attempted murder. Nickerson’s appeal to the California Court of Appeal was denied in 1989 and the California Supreme Court affirmed the conviction that same year. Lodge’s separate capital trial took place after Nickerson’s appeal was rejected by the California Supreme Court. During Lodge’s trial, the court found that the investigating officers, Beck and Hall, engaged in serious misconduct. Finding that they manufactured evidence, destroyed exculpatory evidence and committed perjury, the judge declared a mistrial. At Lodge’s second trial, Brian Tripp recanted his identification of Nickerson, testifying that he identified Nickerson because he was influenced by Beck and Hall. Lodge did not testify. He was convicted and sentenced to life without the possibility of parole. On April 23, 1997, Nickerson filed an application for habeas relief in California Superior Court for the County of Santa Clara. Nearly a year afterwards, the Superior Court denied the petition as untimely. A few weeks later, on May 8, 1998, the California Court of Appeal summarily denied Nickerson’s petition. The California Supreme Court denied his petition as untimely on December 22,1998. On December 28, 1998, Nickerson filed this federal habeas petition. On December 1, 1999, this court dismissed the petition as untimely. Nickerson moved for reconsideration of the dismissal. He submitted with his motion newly discovered exculpatory evidence. On September 14, 2000, the court granted the motion for reconsideration on the basis of evidence of actual innocence and held that Nickerson could proceed on the merits of his habeas petition. On June 1, 2001, the court held that Nickerson had made a showing of extraordinary circumstances that he was likely innocent of the shootings. The court ordered Nickerson freed on bail pending the outcome of his habeas petition. On petition for writ of mandamus, the Court of Appeals ordered Nickerson to return to the custody of the state. In re Roe, 257 F.3d 1077 (9th Cir.2001). Nickerson voluntarily appeared in court and was taken back into custody on June 18, 2001, seven days after his release. The court granted Nickerson’s request for an evidentiary hearing on his three habeas claims. The court held hearings on January 8, 9, 10, and March 28, 2002. The parties submitted over two hundred exhibits including depositions from a number of witnesses in lieu of live testimony. After the evidentiary hearing, the parties filed evidentiary objections and subsequent post-hearing briefing. The court deemed the matter submitted and no oral argument was held. Now before the court is Nickerson’s federal habeas petition. Nickerson maintains his innocence of any involvement in the Evans murders. He claims that he was wrongly convicted due to a pattern of misconduct by the investigating detectives, who manipulated witnesses and hid exculpatory evidence, thus depriving him of a fair trial in violation of his due process rights. He also claims that he was denied effective assistance of counsel and that his counsel suffered from a conflict of interest. PROCEDURAL ISSUES As a threshold matter, the state contends that petitioner’s claims are barred by the state court’s dismissal of his state habeas petition as untimely. The state also contends that newly discovered evidence supporting petitioner’s claims is unexhausted because it was not presented to the state court. I. Timeliness As amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), the federal habeas statute imposes a one year statute of limitations on habeas petitions filed in federal courts. 28 U.S.C. § 2244(d)(1). As his conviction became final prior to the effective date of AEDPA, Nickerson was required to file his federal habeas petition by April 24, 1997, one year from the enactment of AEDPA. Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.2001). The time “during which a properly filed application for State post-conviction or other collateral review ... is pending shall not be counted” towards AEDPA’s statute of limitations. 28 U.S.C. § 2244(d)(2). Nickerson filed a petition for writ of habeas corpus in state court on April 23, 1997, thus tolling the statute of limitations on his federal habeas petition with only a single day left to file. After both the Superior Court of California and the California Court of Appeal denied Nickerson’s petition, Nickerson filed his petition with the California Supreme Court, which denied the petition as untimely on December 22.1998. Nickerson filed a habeas petition with this court six days later on December 28.1998. On December 1, 1999, this court dismissed the petition on grounds that Nickerson had not filed within the one year statute of limitations. ■ On September 14, 2000, the court granted a motion for reconsideration of this ruling and held that despite failure to file within the time required by statute, Nickerson could proceed on the merits of his habeas petition based on proffered evidence of actual innocence. While the court adheres to the logic of its previous order, subsequent changes in the law render Nickerson’s petition timely and the issue of a miscarriage of justice exception to AEDPA’s statute of limitations moot in this case. The Ninth Circuit in Bunney v. Mitchell, 262 F.3d 973 (9th Cir.2001) (per curiam), ruled that a habeas petition is deemed pending before the California courts until the denial of the petition becomes final under state law thirty days after the filing of the order by the California Supreme Court. Id. at 974; CahRules of Court, Rule 24. Under this rule, the order of the California Supreme Court denying Nickerson’s petition did not become final until January 21, 1999. The statute of limitations for Nickerson’s federal habeas petition was tolled under section 2244(d)(2) until the next day, and would have expired two days later, on January 23, 1999. Nickerson therefore filed this petition within the statute of limitations set forth in section 2244(d)(1). II. Exhaustion A habeas petition should be dismissed if the claims contained within have not been fairly presented to the state’s courts in a manner allowing those courts to review the merits of those claims. O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); 28 U.S.C. § 2254(b)(1). In his petition for writ of habeas corpus, Nickerson presents claims for relief based on police tampering with witnesses and evidence, ineffective assistance of counsel, and conflict of interest. The state acknowledges that Nickerson presented all the legal claims contained in his federal habeas petition to the state court. The state contends, however, that insofar as Nickerson bases his due process claim on police misconduct rather than actual innocence, that claim was neither presented to the state court nor to this court in his petition. The court disagrees with the state’s characterization of Nickerson’s claim. In both the petition before this court and the petition presented to the California Supreme Court, Nickerson claimed that newly discovered evidence of police misconduct on the part of Detectives Beck and Hall both required a new trial and helped proved his innocence. See Petition at 3, 40-46; Petition for Writ of Habeas Corpus, H1Í 46, 185-226, In re Nickerson, No. S070204 (Cal. Dec. 22, 1998). In both petitions, the primary piece of “newly discovered evidence” put forth by Nickerson is the finding of evidence tampering and perjury by Beck and Hall in Lodge’s trial. Both petitions also specifically allege that unconstitutional pressure by Beck and Hall caused Brian Tripp to misidentify the man he saw as Nickerson, a view which he later recanted. The court finds that the claim of unconstitutional police misconduct was presented to the California Supreme Court and is properly before this court. The state also contends that Nickerson’s claims must be dismissed because he has not presented evidence in state court regarding the role of William Jahn as a participant in the Evans murders. In habeas proceedings, federal courts may not entertain new evidence that was never presented to the state courts and that “places the claim in a significantly different posture.” Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir.1988), cert. denied, 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989). New factual allegations do not render a claim unexhausted unless they fundamentally alter the legal claim already considered by the state courts. Vasquez v. Hillery, 474 U.S. 254, 260, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir.1994), superseded by statute on other grounds as recognized in Morris v. Woodford, 229 F.3d 775, 779 (9th Cir.2000). Nickerson offers the details of William Jahn’s participation in the Evans murders as evidence of his own innocence. Nickerson argues that while the evidence indicates that the murders were committed by only three perpetrators, the state has now convicted four individuals in the killings. Of these four, Nickerson argues, he alone has not been tied to the scene by physical evidence and was not seen with the other perpetrators that day. The introduction of new evidence of actual innocence in Nickerson’s federal petition does not raise exhaustion issues because the evidence does not relate directly to Nickerson’s substantive claims of police misconduct or ineffective assistance of counsel, and so does not place those claims in a new light. Evidence of William Jahn’s role does bear on Nickerson’s argument that evidence of his innocence warrants reaching his substantive claims despite procedural default. The exhaustion doctrine bars only evidence that places the claims considered by state courts in a significantly different posture. Nevius, 852 F.2d at 470. Principles of comity do not apply where a habeas petitioner faces procedural or jurisdictional obstacles in federal court that are separate from his substantive claims and that did not exist in state court. The exhaustion doctrine does not prevent Nickerson from introducing new evidence of his innocence in his federal habeas petition in order to satisfy the miscarriage of justice exception to the doctrine of procedural default. III. Procedural Bar The California Supreme Court summarily denied Nickerson’s petition with a citation to In re Robbins, 18 Cal.4th 770, 780, 77 Cal.Rptr.2d 153, 959 P.2d 311 (1998), a case in which the court set forth the framework for its analysis of timeliness of habeas corpus petitions. Under Ninth Circuit law, this constitutes a denial only on the procedural ground of untimehness. See Hunter v. Aispuro, 982 F.2d 344, 348 (9th Cir.1992) (where a summary denial by the California Supreme Court includes a citation to state authority indicating that the habeas petition was procedurally deficient, the order represents a procedural disposition rather than a decision on the merits), cert. denied, 510 U.S. 887, 114 S.Ct. 240, 126 L.Ed.2d 194 (1993). The state argues that this dismissal on timeliness grounds constitutes an adequate and independent state law ground for decision. Petitioner maintains that the timeliness bar set forth in Robbins is not truly independent of federal law. In the alternative, petitioner argues that this court should reach the merits of his petition to avoid a fundamental miscarriage of justice. It is a basic rule of federal jurisdiction that the Supreme Court, on direct review of a state court judgment, has no power to review a question of federal law if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment. Fox Film Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 80 L.Ed. 158 (1935). This rule applies to state law decisions which rest on procedural grounds as well as to those that rest on substantive grounds. Henry v. Mississippi, 379 U.S. 443, 446, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). Federal courts also apply the adequate and independent state grounds doctrine while reviewing the lawfulness of a prisoner’s confinement on petition for writ of habeas corpus. Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In the habeas context, the application of the independent and adequate state ground doctrine is not jurisdictional but is instead grounded in concerns of comity and federalism. Id. The doctrine of procedural default is a specific application of this more general adequate and independent state grounds doctrine, under which a federal court generally will not grant habeas relief on a claim that a state court declined to address because the petitioner failed to meet a state procedural requirement. Fields v. Calderon, 125 F.3d 757, 762 (9th Cir.1997.), cert. denied, 523 U.S. 1132, 118 S.Ct. 1826, 140 L.Ed.2d 962 (1998). Federal courts may review procedurally defaulted claims, however, if the petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750, 111 S.Ct. 2546. A. Adequacy and Independence Nickerson first argues that the timeliness bar applied by the California Supreme Court is not independent of federal law. “For a state procedural rule to be ‘independent,’ the state law basis for the decision must not be interwoven with federal law.” LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir.2001) (citing Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). In Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), the Ninth Circuit ruled that the denial of a habeas petition based on the timeliness bar set forth in Robbins rests on state law grounds that are independent of federal law. Id. at 578. The Bennett court, however, remanded for a determination whether the timeliness bar was sufficiently “well-established and consistently applied” at the time the default occurred to qualify as an adequate state procedural ground. Id. at 578; see also Poland v. Stewart, 169 F.3d 573, 577 (9th Cir.) (“A state procedural rule constitutes an adequate bar to federal court review if it was firmly established and regularly followed at the time it was applied by the state court.”), cert. denied, 528 U.S. 845, 120 S.Ct. 117, 145 L.Ed.2d 99 (1999). While placing the ultimate burden of proving adequacy with the state, the court ruled that petitioner must place the state’s affirmative defense of independent and adequate state procedural grounds at issue “by asserting specific factual allegations that demonstrate the inadequacy of the state procedure.” Id. at 584-85. Nicker-son has not challenged the adequacy of the asserted timeliness bar and therefore has not met his burden under Bennett, The court must therefore assume that the denial of Nickerson’s state habeas petition rested on an adequate as well as independent state law ground. B. Miscarriage of Justice Exception to Procedural Default 1. Legal Standard The Supreme Court set forth the miscarriage of justice standard most recently in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), as a limited exception to the application of procedural default for those cases in which the petitioner can show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Id. at 327, 115 S.Ct. 851. Although this requirement has been referred to as a showing of ‘actual innocence,’ it is distinct from the freestanding innocence claim discussed by the Court in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). The claim of innocence under Schlup is not a substantive one which, if proven, would entitle the petitioner to relief from custody, but is instead “a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Schlup, 513 U.S. at 315, 115 S.Ct. 851 (quoting Herrera, 506 U.S. at 404, 113 S.Ct. 853); Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir.2002) (en banc), cert. denied, — U.S. -, 123 S.Ct. 874, 154 L.Ed.2d 792 (2003). In Schlup, the Supreme Court clarified the showing of innocence necessary for a court to review the merits of procedurally barred claims. The Court held that a petitioner must demonstrate that “it is more likely than not that no reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt.” Id. at 326-27, 115 S.Ct. 851. In order to make this showing, a petitioner must “support his allegations of constitutional error with new reliable evidence— whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.” Id. at 324, 115 S.Ct. 851. The Ninth Circuit has held that “where post-conviction evidence casts doubt on the conviction by undercutting the reliability of the proof of guilt, but not by affirmatively proving innocence, that can be enough to pass through the Schlup gateway to allow consideration of otherwise barred claims.” Sistrunk, 292 F.3d at 673 (citing Carriger v. Stewart, 132 F.3d 463, 478-79 (9th Cir.1997) (en banc), cert. denied, 523 U.S. 1133, 118 S.Ct. 1827, 140 L.Ed.2d 963 (1998)). Accordingly, “a petitioner may pass through the Schlup gateway by promulgating evidence that significantly undermines or impeaches the credibility of witnesses presented at trial, if all the evidence, including new evidence, makes it more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Gandarela v. Johnson, 286 F.3d 1080, 1086 (9th Cir.2002), cert. denied, — U.S. -, 123 S.Ct. 882, 154 L.Ed.2d 795 (2003). 2. Analysis In support of Nickerson’s claim of innocence, he introduces three types of evidence. First, he introduces substantial evidence undermining the prosecution’s case against him, including the recantation of the prosecution’s most reliable eyewitness, impeachment evidence, as well as evidence of witness tampering that forms the basis of his misconduct claim. Next, Nickerson introduces evidence of the conviction of William Jahn in 2001 for the murders which he argues were committed by only three perpetrators. Finally, Nickerson offers a detañed history of how the other three men convicted of the crime have without a single exception declared Nickerson innocent, despite admitting their own guüt and inculpating each other on numerous occasions. i. Subsequent Evidence Contradicting the Prosecution’s Case No physical evidence linked Nickerson to the Evans murders. The bulk of the evidence on which Nickerson was convicted consisted of the testimony of four witnesses: Brian Tripp, Judy Bryant, Michael Osorio and Sharon Sñberhorn. The prosecution’s case relied, therefore, on the credibüity of those witnesses and the credibility and integrity of the detectives who guided eyewitnesses through the process of identifying Nickerson. Nickerson first offers evidence that contradicts and impeaches the trial testimony of the two most. inculpatory witnesses, Brian Tripp and Judy Bryant. a. Brian Tripp At Nickerson’s trial, Brian Tripp gave the most credible eyewitness account which placed Nickerson at the scene of the crime. In contrast to the histories of drug use or criminal conduct of other witnesses such as Michael Osorio and Judy Bryant, Tripp testified whüe employed as a deputy sheriff. Unlike Osorio, who observed the attackers whüe they were wearing ski masks and whüe he was lying handcuffed on the floor, Tripp observed the man he identified as Nickerson without a mask at distances between four and fifteen feet. Tripp observed the man for a reasonable period whüe the man stood bewüdered in Tripp’s parking area, turned and asked Tripp directly where he was, and aüowed Tripp to reply before running off. Tripp testified that his certainty that the man he saw was Nickerson was “nine out of ten.” By the time Brian Tripp testified again in the 1992 trial of Murray Lodge, he had worked as a deputy sheriff for six years. LT1 7977. Under oath and in open court, Tripp unequivocally recanted his previous testimony and affirmatively stated that the man he saw “was nowhere near the size Buddy Nickerson is.” LT1 7998-99, 8002-03. Tripp affirmed his original identification of a man about five feet eleven inches to six feet tall and weighing 190 to 200 pounds, with darker straight hair and a moustache to the corners of his mouth. LT1 8002-03. Tripp testified that the questioning conducted primarily by Beck and Hall led to his misidentification of Nickerson. LT1 7999-8000, 8018-19. In Carriger v. Stewart, the Ninth Circuit considered the recantation and confession of a government witness in finding that petitioner had satisfied the showing of innocence required by Schlup, where the recantation bore indicia of reliability. 132 F.3d at 474-75, 478 (relying on the recanted testimony of a government witness where recantation was against penal interest, confession contained details which only perpetrator was likely know, and amended testimony fit with other evidence in the case). Tripp’s recantation likewise bears certain hallmarks of reliability. Tripp’s testimony in the Lodge trial confirms the descriptions he initially gave to police. The fact that Tripp’s original identification matches Jahn fits with the newly discovered DNA evidence pointing to Jahn as the bleeding runner that fled through Tripp’s apartment complex. Finally, Tripp’s explanation for his identification of Nicker-son at trial — that he was pressured by police investigators — comports with the other evidence presented by Nickerson and credited by this court that Detectives Beck and Hall engaged in a pattern of misconduct throughout the investigation of the case. The court also notes that many of the reasons to distrust recanted testimony are absent here. Unlike a testifying codefendant or a jailhouse informant who may often recant testimony, Tripp has no loyalty to Nickerson nor fear of being labeled a snitch. Quite the opposite is true — as a law enforcement officer, Tripp no doubt has more to lose by recanting his identification than by adhering to it. In contrast to an ordinary citizen, Tripp should be accustomed to participating in the criminal justice system as an agent of the state. There is no reason to think that the gravity of his role as a key witness for the prosecution would cause him to entertain false doubts about his testimony. The court credits Tripp’s recantation and finds that, for purposes of the present inquiry, it fully negates the testimony identifying Nickerson he gave at Nickerson’s trial, b. Judy Bryant Judy Bryant’s account of highly inculpatory statements made by Nickerson in the van ride soon after the murders provided perhaps some of the prosecution’s strongest evidence in Nickerson’s trial. Because much of Bryant’s testimony at Nickerson’s trial completely surprised the defense, she was subjected to little cross-examination. She has subsequently been thoroughly impeached by evidence not put forth at Nickerson’s trial. Judy Bryant testified again at Lodge’s trial about the van ride in which Nickerson allegedly made incriminating statements. She testified contrary to her testimony in Nickerson’s trial that the van ride occurred a few hours after the shootings rather than a full day. LT1 9684-85, 9710-11, 9717. Bryant was impeached in the Lodge trial by her then-husband, Kelly Bryant, who testified that she was a regular methamphetamine and cocaine user and that she had been drinking heavily and using methamphetamine on the day the van ride occurred. LT1 12430, 12457. Mr. Bryant also testified that she abused alcohol, drinking “whenever she had money”, and that when drunk, she often told “tall tales” or “whoppers.” LT1 12444-46, 12455. He testified that when challenged she refused to admit the untruth of her stories. LT1 12407-08. Her husband also testified that Judy Bryant told him that Nickerson said that he tortured and molested Evans before killing him. LT1 12428-29; Exh. 17. There is no evidence that Evans was tortured or sexually assaulted. Bryant was also impeached at Lodge’s trial by Detective Hall. According to Detective Hall’s notes from his first interview with Bryant, she mentioned being with Nickerson on the early morning of September 16 and told Hall about the statements Nickerson made in his phone call to his mother. LT1 10670-71, 10788; Exh. 15. She did not mention the inculpatory statements made on the van ride. Id. Jack Ball and Mick Cleveland, two other participants in the van ride, recounted the van ride differently. Jack Ball told investigators that during the van ride Judy Bryant accused Nickerson of being involved in the shootings and that Nickerson emphatically denied any involvement. Exh. I. Ball denied that Nickerson made the statements Bryant attributed to him. Id. At Lodge’s trial, Cleveland testified that he did not remember any unusual conversation in the van ride. LT1 12005-OS. In addressing Nickerson’s state habeas petition, Judge Edward F. Lee remarked, “[T]his court certainly concedes that Judy Bryant could have been more thoroughly cross-examined by petitioner’s trial counsel and her testimony effectively repudiated ....” In re Nickerson, No. 99023, at 12 (Cal.Super.Ct., Apr. 8, 1998). The court agrees, finding that the ever-shifting nature of her accounts, the evidence of regular substance abuse and deceit, as well as the directly contradictory testimony of other witnesses and participants effectively undermines Judy Bryant’s testimony regarding Nickerson’s van ride confession. ii. The 2001 Conviction of William Jahn for the Evans Murders After Nickerson filed the present action in this court, the State of California tried and convicted a fourth man, William Jahn, for the murders of Evans and King and the attempted murder of Michael Osorio. At Jahn’s trial, Norma Goytia identified him as the man “Bob” who was with Hamilton when Hamilton took Goytia’s gun, which was later found at the crime scene. Exh. 64 at 1512-13. Jahn weighed between 190 and 200 pounds and stood between five feet eleven inches and six feet tall, 4 EHT 58, thus matching the physical description witnesses, including Brian Tripp, saw fleeing the scene. DNA tests performed by the Santa Clara District Attorney matched the blood trail leaving the scene of the crime to Jahn. Pet. Traverse, Exh. 6 (Santa Clara Crime Laboratory Report No. 04, dated May 16, 2001 and No. 05, dated May 31, 2001). DNA testing also showed that blood on a Playtex glove found near the crime scene belonged to Jahn, and that Jahn was a possible match for the blood on the tip of a rubber glove at the crime scene. Id. Two women treated Jahn for gunshot wounds on the night of the killings. Pet’s Traverse, Exh. 8 &. 9. Jahn’s body bears the sears of several bullet wounds which still contain traces of metal. Pet. Traverse, Exh. 7. Jahn admitted tó his ex-wife that he was shot when he went to a home to steal drugs. Exh. 59, 60, 61. Jahn confessed to his role in the murders to Nickerson’s counsel and described the events in detail. 4 EHT 52-64. Jahn was charged with the Evans-King murders and the shooting of Osorio in 1999 and was convicted in September 2001. iii. Exoneration of Nickerson by Lodge, Hamilton, and John As further proof of his innocence, Nickerson presents evidence indicating that during the seventeen years since the murders, the other convicted co-defendants have repeatedly exonerated Nickerson. At the evidentiary hearing, Nickerson presented the testimony of Murray Lodge, in which Lodge described the Evans murders in great detail and exonerated Nickerson. Nickerson does not rest solely on Lodge’s statements, but offers a variety of evidence other than Lodge’s testimony. He introduces testimony and depositions from Lodge’s family, other inmates, and even Lodge’s former attorneys that illustrate that Lodge has uniformly maintained Nickerson’s innocence in situations in which he which he would have no motive to lie. Finally, Nickerson presents evidence that Jahn and Hamilton have made statements exonerating him. a. Prior Exonerations by Lodge Nickerson first introduces testimony by a number of Lodge’s prior attorneys, family, and fellow inmates, who each testified that Lodge repeatedly told them that he committed the crimes with Hamilton, Jahn, and Wofford, and that Nickerson was not involved. The court admitted the deposition testimony of Charles Constantinides, Lodge’s counsel from approximately December 1984 until March of 1987, and currently a Santa Clara County Deputy District Attorney. Exh. 49 at 6-8. Constantinides testified that Lodge consistently told him that Nickerson was innocent of the crimes, Exh. 49 at 44, and that Lodge, Hamilton, and an unnamed man who was shot at the scene were responsible for the shootings. Exh. 49 at 19-20, 21, 34-40, 50-51. Constantinides witnessed two violent assaults in which Lodge attacked Nickerson. Exh. 49 at 17-19. After the assaults Lodge spoke to Constantinides about Nickerson, saying “I would never associate with that guy. He’s stupid and a snitch, and he can’t be