Full opinion text
MEMORANDUM REGARDING REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HA-BEAS CORPUS AND MOTION FOR AN EVIDENTIARY HEARING (Dkt. Nos. 1 and 19) PONSOR, District Judge. I. INTRODUCTION Habeas corpus petitioner Wayne Blyth Healy (“Healy” or “Petitioner”) contends that he has been wrongly imprisoned following his conviction on one count of first-degree murder. His arguments can be divided into three categories: (1) that the prosecution’s failure to disclose material, exculpatory evidence violated his rights as set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) that he is entitled to an evidentiary hearing to develop his claim that the jury foreman was improperly influenced; and (3) that there was insufficient evidence to support his conviction. Citing Terry Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Respondents Luis Spencer and Thomas F. Reily (“Respondent” or “the Commonwealth”) assert that Petitioner’s habeas claims should be denied because the state court’s adjudication involved neither an unreasonable application of clearly established federal law nor an unreasonable conclusion that the evidence, when taken in the light most favorable to the prosecution, was sufficient to support the jury’s verdict. Furthermore, Respondent contends that permitting an evidentiary hearing would be improper in light of Petitioner’s lack of diligence in pursuing a jury taint claim in state court. See Michael Williams v. Taylor, 529 U.S. 420, 435, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). See supra note 1. This matter was referred to Magistrate Judge Kenneth P. Neiman, who recommended that habeas corpus relief be granted with respect to Petitioner’s Brady claim, that Petitioner’s motion for an evidentiary hearing be allowed, and that relief be denied, without prejudice, with respect to Petitioner’s insufficiency of evidence contention. For the reasons set forth below, the court will adopt this recommendation with respect to Healy’s Brady claim and request for an evidentiary hearing. However, because sufflciency-of-the-evidence review concerns only the evidence adduced at trial, United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), the court will deny habeas relief with prejudice with respect to that claim. II. FACTUAL AND PROCEDURAL BACKGROUND A. Healy I. 1. The Crime. In its opinion addressing Petitioner’s direct appeal, Commonwealth v. Healy, 393 Mass. 367, 471 N.E.2d 359 (1984) (“Healy I”), the Massachusetts Supreme Judicial Court (“SJC”) offered the following summary of “the evidence submitted by the Commonwealth.” Id. at 363. Between 1 and 1:30 A.M. on August 8, 1980, the victim, Richard Frank Chalue, was heard screaming for help from inside his apartment in Holyoke. Chalue’s body was found on his bed shortly before 2 A.M. He had been stabbed fourteen times in the chest, once on either side of the neck, and once on his right thigh. There was also a laceration on his left index finger. His hands had been bound behind him with socks tied together, and he had a gag of socks tied around his mouth. He was naked except for a towel wrapped around his neck and a pair of dungarees half-way down his legs. A pair of boots tied together with socks lay on the floor at the foot of the bed. On the table in the kitchen were a partially empty bottle of rum, two bottles of cola, one of which was partially empty, a glass, and an ashtray containing cigarette butts. The apartment was dark, since there was no electricity as a result of a fire in the building the week before. The victim’s Doberman pinscher dog was locked in another room of the apartment. Both the front and the back doors were locked, the front door having been locked with a key from the outside. Id. 2. The Investigation. “Since the fire,” the Commonwealth’s evidence indicated that, the victim had been staying alone in the apartment, with the dog guarding his possessions. His girlfriend and her two children, with whom he had shared the apartment for the last three years, were staying with her mother in her mother’s apartment in a neighboring building. The victim, his girlfriend, and the children were to have moved to a new apartment on August 8. On the evening of August 7, the victim had supper with his girlfriend and the children in her mother’s apartment and then took the children to a park. They returned at about 7:30 P.M., and he left at about 8:20 P.M. At about 9:15 P.M. his girlfriend telephoned Chalue’s apartment. There was no answer. She called back twice in rapid succession. Chalue answered the third time, sounding as though he had been running and was out of breath. He said that he had been downstairs at the apartment of a neighbor. Then she heard someone walk into the kitchen and say something to Cha-lue, and she heard them both laugh. She testified that it was the “very soft voice” of a man. Then Chalue became silent. She asked him who was with him. Finally, he answered that it was “Johnny,” the neighbor from downstairs. She asked him several times whether everything was all right. He kept responding, “[S]ure, why wouldn’t it be?” Johnny Arel testified at trial that he was not in Chalue’s apartment, or indeed in the building, on the night in question. Johnny’s brother, Leo, who was staying in the fourth-floor apartment directly below Chalue’s, testified that between 9 and 10 P.M. he heard someone going up the stairs; he went out to investigate, and spoke with Chalue, who was outside his own apartment and not within Leo’s view. Leo then heard Chalue’s front door close. Between midnight and 1 A.M. on August 8 he heard noises in Chalue’s apartment as though furniture were being moved. A short time later he heard noises in the hallway and on the stairs outside his front door. When he turned off his radio and approached the door, the noise stopped. Leo was carrying a lantern, and its light was visible through his front door’s transom. He heard the noise again twice, and, when he turned the radio off or approached the door, the noise stopped. A short time after the last noise, he heard the police cruisers arrive. A cash register receipt for rum, cola, and ice was found, stained with blood, on the third-floor landing of the front stairs. The Commonwealth’s fingerprint expert testified that he had found [Petitioner’s] fingerprints on the bottle of rum and on the partially empty bottle of cola. The Commonwealth’s expert serologist testified that his tests indicated that four cigarette butts which had been taken from the ashtray on the victim’s kitchen table had been smoked by someone who was a “non-secretor,” i.e., who did not secrete blood group substances in his saliva. According to the expert’s testimony, 20% of the population is composed of non-secretors. A test of [Petitioner’s] saliva showed that he was a non-secretor. Further, one of the four cigarette butts was found to contain cell material from a person with group B blood. [Petitioner] has group B blood. According to the Commonwealth’s expert, 2% of the population are non-secretors and have group B blood. A bloodstained knife was found on the dresser in Chalue’s bedroom. The Commonwealth’s expert serologist also testified that tests performed on the blood on the knife showed it to contain A and B antigens, which would be consistent with the blood being a mixture of blood of group A and blood of group B. The victim’s blood type was group A. Similarly, a long-sleeved shirt found in a search of [Petitioner’s] apartment had a bloodstain containing both A and B antigens. Finally, group B blood was found on the gear shift and brake lever of [Petitioner’s] automobile. When the police officers questioned [Petitioner] on the evening of August 8, he had a bandage on the palm of his right hand. The doctor who sutured the wound at about 8:20 A.M. on August 8 testified that in his opinion the wound had been between four and twenty-four hours old at the time he treated it. He testified that the wound could have been caused by the knife found in the victim’s bedroom. On August 8 at about 6:15 P.M. William McCarthy, captain of detectives with the Holyoke police department, dialed [Petitioner’s] telephone number, which he had found in the victim’s address book next to the initials “W.H.” [Petitioner] told McCarthy that it had been three or four months since he had last seen the victim, who had once been married to [Petitioner’s] sister. He said that he had had a telephone call from Chalue at about 7 P.M. the evening before, inviting him to a “get-together,” but that he had declined the invitation because he had other plans for the evening. McCarthy asked Healy if he would come to the police station sometime to talk with the police officers and possibly to help them in the case. Healy made an appointment to meet with McCarthy at the police station on the following day. About twenty minutes later [Petitioner] called McCarthy to ask whether he could come down to the station that evening, saying that he did not think he would be able to sleep that night “thinking about this.” McCarthy agreed to the change. [Petitioner] was accompanied to the police station by his roommate, George Roy. [Petitioner] was ushered into McCarthy’s office, and Roy was asked to wait outside. McCarthy began the interview by asking [Petitioner] the names of the victim’s friends, what bars and cafes the victim had frequented, and related questions. Then'[Petitioner] made the statement that he had taken Chalue the rum and cola, had spoken to him outside, and had returned home at about 10:15 P.M. McCarthy pointed out that this statement contradicted what Healy had told him on the telephone. Healy responded that he had not gone to the apartment and that McCarthy could verify that he arrived home at 10:15 P.M. by asking Roy. When McCarthy went out of the room to question him, Roy stated that on the way to the police station he and [Petitioner] had agreed to say that [Petitioner] got home at about 10:15 P.M., but that it actually could have been 12:30 A.M. Id. at 363-365 (footnotes omitted). Later in the interview, [Petitioner] told the police officers that after leaving Chalue he had gone to two “gay” bars in Springfield and had arrived home shortly after midnight. When asked by the police officers, he stated that he was a homosexual. Id. at 365. Also on August 8th, Dr. Paul Wakefield performed an autopsy on the victim. In a four-page report entitled, “Holyoke Hospital Pathology Department Post-Mortem Examination” (“postmortem report”), Dr. Wakefield stated that the victim’s genitalia were “examined closely” and that “no evidence of marks of recent origin” were found. (Dkt. No. 10, Ex. 11, Def.’s Am. Mot. New Trial, Ex. B *1.) A similar examination of the rectum revealed “no abnormal findings on the external surface.” (Id.) Dr. Wakefield also noted that “[s]mears [were] made by use of a swab from both the mouth as well as rectum to be examined under the microscope.” (Id.) Two days later, on August 10th, Dr. Wakefield authored a handwritten note (“note”), which indicated the results of the microscopic examination: “Smears made from mouth and rectum fail to reveal spermatozoa present.” (Dkt. No. 10, Ex. 11, Def.’s Am. Mot. New Trial, Ex. C *1.) In a two-page “Autopsy Report” dated November 28, 1980, Dr. Wakefield included a subheading entitled, “Final Diagnosis” (“final diagnosis”). This report explained the cause of death, but neglected to mention Dr. Wakefield’s findings regarding the victim’s rectum and genitalia, the use of any swabs or smears, or the results of the microscopic examination. (Dkt. No. 10, Ex. 11, Def.’s Am. Mot. New Trial, Ex. D *4.) After a Hampden county grand jury returned a single indictment charging Petitioner with murder on September 11, 1980, Petitioner’s counsel moved to have the prosecutor provide him with all autopsy-related records and disclose any facts of an exculpatory nature. (Dkt. No. 10, Ex. 17, Super. Ct. Findings, Rulings, & Order 6, May 8, 2001.) The district attorney’s office turned over the final diagnosis, but did not produce Dr. Wakefiled’s postmortem report or the note. (Id.). 3. The Trial. a. Evidence Relating to Homosexuality. Petitioner’s jury trial began on March 11, 1981. On March 3rd, during a motion to suppress hearing, the prosecutor asked Healy’s roommate, George Roy, to describe his relationship with Petitioner. (Dkt. No. 24, Tr. Hr’g Mot. Suppress 179:18-19, 182:19-20.) When Roy responded that they were “[v]ery good friends” (id. at 182:21), the prosecutor asked Roy whether he and Healy “share[d] the same bed,” (id. at 183:14). At first, Roy stated that they did, but sought to explain this sleeping arrangement as an accommodation to Petitioner’s aunt, who had moved in with them. (Id. at 190:3-5.) However, when the prosecutor' subsequently asked whether Roy and Healy were lovers (and the court ordered the witness to answer the question), Roy admitted that they were and stated that this was the primary reason they slept together. (Id. at 192:2-6, 16-20.) Petitioner’s trial counsel objected when the prosecutor proceeded to ask whether Roy had “engaged in sexual relations with Mr. Healy,” and the court sustained the objection. (Id. at 193:18-22.) During his cross-examination, Roy maintained that the reason he and Healy agreed to lie to the police about the time Petitioner returned home was to protect Roy’s status as a “closet” homosexual. (Id. at 194-95.) Two days later, during a bench conference in the process of picking a jury, the prosecutor made known his intention to “introduce certain photographs of the deceased” (Dkt. No. 26, Tr. Hr’g 398:23) in order to allow jurors to infer that “it was a homosexual related murder,” (id at 399:5-6). “[I]f in fact [Petitioner] is homosexual,” the prosecutor told the judge, and the jurors “draw some connection between the two, I think they have a right to do that.” (Id at 399:6-9.) On the first day of the trial, when the prosecutor did introduce several such photographs, Petitioner’s trial counsel argued that they were being used “to suggest to the jurors that there was some type of homosexuality involved in this particular murder and there really is no evidence of that.” (Dkt. No. 30, Trial Tr. 887:21-23.) The state trial judge overruled the objection and permitted the jurors to see the pictures, including one which showed “the victim lying on his stomach with his hands tied behind his back.” (Id at 892:5-6.) The prosecutor subsequently introduced “a pair of underwear found on the top of the dresser in the Chalue apartment which had stains on it which appeared to be blood.” (Id at 927:4-6.) Later expert testimony indicated that the underwear contained “seminal fluid or semen in the fly area” consistent with the victim’s blood type. (Dkt. No. 35, Trial Tr. 1723:17-19, 1724:4-5, Mar. 18, 1981.) The next day, March 12th, featured testimony from Charlene Breault, the victim’s neighbor and sister of the victim’s girlfriend. Breault told jurors that only a few days before his death, the victim had answered his door while “zipping up his pants” after making her wait approximately ten minutes. (Dkt. No. 31, Trial Tr. 1040:9, 1042:14-16.) In addition, Breault stated that the victim had recently become irritated with her for passing through his apartment to get to hers. (Id. at 1040:11-12) Later on March 12th, the prosecutor' called Holly Bendickson, the victim’s girlfriend, who testified that the victim’s personality had begun to change several months before his death. (Id. at 1084:17-20.) On the morning of the murder, Bendickson testified that she knocked on the victim’s back door. (Id. at 1085:12-16.) When he did not respond, she looked through the bedroom window and saw a reflection of the victim’s bare legs on his bed. (Id. at 1088:5-11.) Soon afterwards, she heard the front door open and close. (Id. at 1103:11-13.) When the victim finally arrived at the back door ten or fifteen minutes later, he refused to acknowledge that he had been in bed, but instead claimed to have been sleeping “dressed up ... on the couch.” (Id. at 1089:10-12, 22-23.) Bendickson also testified that during a phone conversation with the victim on the night of the murder, she heard a man with a “very soft voice” enter the victim’s kitchen and laugh. When Bendickson asked who it was, the victim “went silent” and did not respond until she repeatedly asked, “Frank, are you there, Frank, are you there?” (Id. at 1124-28.) On March 16th, Captain McCarthy testified that at the close of his interrogation on August 8, 1980, Petitioner claimed that after he left the victim he went “to Springfield to visit a couple of gay bars.” (Dkt. No. 33, Trial Tr. 1292:3-4.) McCarthy added that, when another detective asked Petitioner “if he was in fact a homosexual,” Petitioner said that he was. (Id. at 1292:21-23,1293:1.) The Commonwealth rested on March 19th, and the next day, Petitioner took the stand. During his testimony that day, the prosecutor .objected when defense counsel attempted to introduce the jeans Petitioner had been wearing on the night of the murder. (Dkt. No. 37, Trial Tr.2004:7-8, 18-21.) At a subsequent bench conference, defense counsel explained that the unbloodied condition of the jeans suggested Petitioner was not the perpetrator of this very bloody crime. In response, the prosecutor stated: “He was nude when he did it is going to be our theory.” (Id. at 2005:6-7.) The trial judge allowed the jeans to be marked for identification. (Id. at 2009:11-12.) During his direct examination, Petitioner repeated the story he eventually told the police, i.e., after leaving the victim at approximately 10:05 P.M., he visited two gay bars, then returned home at approximately 12:15 a.m. to his housemate and lover, George Roy. (Id. at 2066-86.) For his part, Roy testified that he observed nothing unusual about Petitioner’s appearance or demeanor when he returned home and that the cut on Petitioner’s hand came from an accident in the kitchen sink the morning after the murder. (Dkt. No. 40, Trial Tr. 2538-40, 2543:7-15.) Both men testified that the fear of having the nature of their relationship become public led them initially to misstate the time Petitioner returned home. (See Dkt. No. 38, Trial Tr. 2180:4-18, Mar. 24, 1981 (Petitioner testified that “it wasn’t common knowledge that George and I were gay” and that Roy and he agreed not to mention Petitioner’s trip to the gay bars for the good of their respective careers.); Dkt. No. 40, Trial Tr. 2584:15-23, Mar. 26, 1981 (Roy testified that he was “a closet case” homosexual, whose fear of having his sexual identity known led him to tell the Petitioner, “You can’t just go down [to the police station] and answer questions and say you were at gay bars.”).) The prosecutor, in cross-examining Petitioner and Roy, repeatedly probed the nature of their relationship and the consistency with which they concealed their sexual identities. For example, on March 24th, after eliciting testimony that Roy had been Petitioner’s lover for four years (Dkt. No. 38, Trial Tr. 2248:18-23, 2249:1-3), the prosecutor used that information to suggest that it was Roy’s love for Petitioner — rather than his fear of having his homosexuality become public — that led him to lie about Petitioner’s whereabouts on the night of the murder, (id. at 2266:11-17, 2267:1-2 (“You’re asking George Roy [to lie], [who] you’ve indicated has been your lover for four years ... ?”)). Two days later, when cross-examining Roy, the prosecutor asked a series of questions about his attendance and activities at gay bars to suggest he was not the “closet case” he claimed to be. (See Dkt. No. 40, Trial Tr. 2639-51 (“[Mr. Roy], were you hiding your homosexuality when you were dancing with a man in the [gay] bar?”).) At the same time, many of the prosecutor’s questions seemed to go beyond conventional efforts to demonstrate bias or undermine credibility. For example, the prosecutor repeatedly asked Petitioner and Roy whether they slept in the same bed. (See Dkt. No. 39, Trial Tr. 2317:23, 2318:1-5 (“[T]here’s a double bed in that room, isn’t that right? ... And George Roy sleeps with you every evening? ... And has for four years?”); id. at 2319:13-19, 2320:2-3 (“Was [your aunt] aware of the fact that you [and Roy] slept in the same bedroom? ... And you didn’t alternate [—] sleep on the couch one night and in that bedroom the other night? ... Was it the usual set of circumstances, sir, for you to sleep with Mr. Roy in that bedroom?”); Dkt. No. 40, Trial Tr. 2629:16-19, 2630:4 (“Did [Petitioner’s aunt] know where you slept at night, [Mr. Roy]? ... Did she know where Mr. Healy slept? ... Was she aware you slept together, sir?”); id. at 2672:13-14 (“[Mr. Roy] is it fair to say you slept with [Petitioner] every night throughout this trial?”); id. at 2687:9 (“[Mr. Roy, have you] [g]one to bed with [Petitioner] through [the last two and one half years]?”).) In addition, the prosecutor: (1) asked Petitioner if he knew the victim was bisexual (Dkt. No. 38, Trial Tr. 2297:8-9); (2) asked Roy if, during his relationship with Petitioner, he had “gone to bed with any other men” (Dkt. No. 40, Trial Tr. 2687:11); and (3) attempted unsuccessfully to introduce one of Petitioner’s tee-shirts, which said “Sex Instructor, First Lesson Free,” (Dkt. No. 39, Trial Tr. 2452-56). During closing argument On April 2, 1980, Petitioner’s counsel stated: ‘Wayne Healy testified ... he was wearing a pair of dungarees, a blue short-sleeved shirt ... and sandals.... The police ... [found] no blood whatsoever on the clothes that Mr. Healy was wearing that night, none whatsoever.” (Dkt. No. 44, Trial Tr. 3250:14-19, 3251:3-5.) In response in his own closing, after reminding jurors of testimony indicating that “there were certain behavioral changes ... observed in Frank Chalue just prior to his death” (id. at 3272:3-4), the prosecutor stated: You saw the photographs. This man was stabbed 17 times. Blood was going all over the place. Would it be logical ... that the person who stabbed him could be covered with blood and would it necessary follow ... that that person be wearing any clothing? Now, you’ve seen the photographs .... [W]hat kind of activity do you think was going on in that bedroom? Ask yourselves that. Don’t leave your common sense at home. Does it necessarily follow ... that that person who was with Mr. Chalue had any clothes on at all? Could you infer ... that he ... washed the blood off? Mr. Chalue was naked except for pants below the knees. Do you think you can infer that this person was necessarily clothed that was with him in that bedroom? (Id. at 3293:3-22.) b. The Investigation into Potentially Improper Communications with the Jury Foreman. According to the Healy I court, During the trial it came to the attention of the prosecutor that the foreman of the jury, Paul L. Briere, might have been subjected to extraneous influences in the form of improper communications by a third person. The third person was a law student, Paul Ramy, who was employed by the .same company as Bri-ere .... On April 2, 1981, just before closing arguments, the judge ... examined Ramy under oath, and also questioned the foreman. These sessions were held separately in the judge’s lobby in the presence of counsel. Counsel were permitted to question [Ramy] and apparently to suggest questions to the judge to ask the foreman. Ramy testified that Briere had said that he had been made foreman; that many exhibits had been introduced and it had been a “very long day”; that it was a difficult case; that he hoped the jury would be able to bring a transcript to the jury room with them. When Bri-ere was first empanelled, Ramy told him that he could not look at Ramy’s evidence books. Briere never commented to Ramy on the evidence, asked him about the admissibility of evidence, or talked to him about what was going on in the courtroom. Briere stated that he had asked Ramy whether a jury were allowed to take a transcript of the trial into the jury room and that he had speculated to Ramey as to whether evidence was being questioned. He said, “The questions I asked were general in nature and have nothing to do with the specifics of the case.” He denied having discussed the evidence, its admissibility or exclusion, or any other aspect of the case with Ramy. The judge instructed the foreman that he could consider only the evidence he heard in the courtroom and that he had to take the law from the judge. He told him to tell the rest of the jury that he had been in the lobby discussing scheduling with the judge. The judge also told Briere not to entertain a grudge against either side because he had been questioned. Briere resumed his seat on the jury. The record indicates no objection by either counsel. Healy I, 471 N.E.2d at 373-75. c. The Balance of the Evidence. On Friday, April 3rd, the jury began its deliberations. (Dkt. No. 46, Tr. Trial Proceedings 3:14-15.) The following morning, the jury foreman sent the trial judge a note on behalf of the jury requesting clarification on the issues of permissible inferences, reasonable doubt, and circumstantial evidence. (Dkt. No. 47, Tr. Trial Proceedings 8:20-9:1.) Wfiien the jury had not reached a verdict by nine o’clock on Saturday night, the prosecutor unsuccessfully moved for a mistrial. (Id. at 22:9-17.) On Monday, April 6th, a newspaper article appeared in the Holyoke Transcript entitled, “Friends Rally for Healy.” (Dkt. No. 49, Tr. Trial Proceedings 14:16-17:19.) This prompted the prosecutor to move again for a mistrial on April 7th. (Id. at 4:21-23.) In response to this motion, the trial judge stated: this is a very, very, very delicate trial. The Commonwealth’s case ... consists of admissions allegedly made by Mr. Healy and inconsistent — in other words, it’s entirely, purely circumstantial evidence, so it’s right in the balance in the sense of this, when you have a circumstantial case like this, I can’t remember one in many years where a case is so delicately balanced than that even in a small matter, if the jury found out about it, it could tip the balance. (Id. at 24:20-25:5.) After a voir dire examination revealed that one of the jurors had seen Petitioner’s name in the headline (id. at 37:15-17, 47:14-22), the prosecutor urged that the juror be removed, but noted that doing so “would certainly have the potential of affecting the other remaining members of the panel.” (Id. at 50:6-7.) Asked by the court how one juror’s removal might make the others feel, the prosecutor conceded that “there’s no way that you can read into the minds of jurors” (id. at 50:17-18), but stressed the closeness of the case: “I think what we’re after here is a fair judgment— evidence, anything could tip that balance.” (Id. at 50:19-21.) Calling this a “difficult case” (id. at 69:2) in a “delicate balance”' (id. at 69:4), the court ultimately denied the prosecutor’s motion for a mistrial and ordered the jurors sequestered, (id. at 69:13,16). The following day, the jury found Petitioner guilty of first-degree murder. (Dkt. No. 50, Tr. Jury Verdict 6:16-21). 4. Petitioner’s Initial Quest for Post-Conviction Relief. On April 10, 1981, one day after Petitioner was sentenced to life in prison, defense counsel learned that Ramy and the jury foreman Briere were not the social Mends they had claimed to be during the April 2nd lobby conference, but had, in fact, been living together during the trial. (Dkt. No. 51, Tr. Lobby Conference 3:5-9, 20-23, Apr. 13,1981). After speaking with Ramy’s lawyer in another lobby conference on April 13th, the trial judge reopened his investigation into the Ramy-Briere relationship and ordered both men to appear for a third lobby conference on April 16th. The next day, April 14,1981, the Petitioner appealed his conviction. On April 16th, Briere stated, under oath, that because of marital problems he had been renting a room from Ramy during the period of the trial. He testified that he had told Ramy during the trial that he could not discuss the case with anyone. He had asked Ramy if the jury could see a transcript and what a “voir dire” was. Ramy had told him that he knew someone who was a spectator at the trial. Ramy had said that that person was known to him only as “Dick.” Sometimes at night he would repeat “Dick’s” comments to Briere. Briere “tried very hard to be stoic.” At various points Ramy said that he heard that [Petitioner] took the stand that day or that there had not been a trial another day. Defense counsel asked Briere if Briere had had a conversation with Ramy about the credibility of [Petitioner’s] testimony, along the line indicated by Ramy’s statement to his fellow student. Briere replied, “No, I didn’t.” Ramy’s testimony on April 16 was consistent with his earlier testimony as to conversations he had had with Briere about the trial. However, it became clear on April 16 that Ramy had been evasive on April 2 about the fact that Briere was living with him. On April 16 Ramy was extremely evasive, to put it charitably, about what he had said and to whom he had said it relative to ... what period Briere was living with him; and whether he had told Briere about what had been said at Ramy’s first visit to the judge’s lobby. Furthermore, Ramy was unable to give any more information about “Dick” other than that “Dick” was not a lawyer or a law student, that he had met “Dick” sixteen years before in a bowling league, and that he had had the conversation about the trial with him at a supermarket meat counter. He swore “[unequivocally,” though, that “ ‘Dick’ was not Paul Briere.” The judge had referred to “Dick” as “mysterious” and said that defense counsel probably thought that “Dick” was Briere and would be perfectly right in filing a motion for a new trial. He had advised Ramy to get a lawyer and to return on another day. At the end of the hearing the judge asked Ramy to try to locate “Dick” and to bring him back to the court. The judge said, “[T]he only thing Pm interested in is quite frankly to make sure the.verdict was not tainted by the outside news, or by any members of the jury .... So, bring in this guy ‘Dick’ ... if there is such a person because I want to make sure the verdict was not tainted in any way, shape or manner.” He set a further hearing for April 28 .... Healy I, 471 N.E.2d at 374-75. On April 23, 1981, the trial judge left the Superior Court and became an Associate Justice of the Massachusetts Appeals Court. The April 28th hearing did not take place. On July 15, 1981, Petitioner filed a motion for a new trial in the Superior Court, noting that the trial judge’s “investigation could not be continued.” (Dkt. No. 9, Ex. 2, Def. Mot. New Trial 3.) At the close of oral argument on August 12, 1981, the Superior Court judge who inherited the case denied Petitioner’s motion, ruling that there was “no dangling matter” (Dkt. No. 53, Mot. Hr’g New Trial 23:23-24:1) and “no evidence that the jury verdict was tainted,” (id. at 26:18-19). The judge declined to hear from Briere or Ramy, who had been subpoenaed by Petitioner and were at the courthouse ready to testify. (Id. at 8:2-4) On August 28, 1981, Petitioner filed a motion requesting an evidentiary hearing to determine “whether ‘Dick’ was Briere or someone else” and whether there had been improper contact with a sitting juror. On September 8, 1981, the same judge denied the motion. The Petitioner appealed both the denial of his motion for a new trial and the denial of his request for an evidentiary hearing to the SJC. In addition, he filed “a second motion for a new trial, together with other motions.” Healy I, 471 N.E.2d at 363; see also id. at 363 n. 1 (noting Petitioner’s “motion for permission to interrogate jurors and witnesses”). On November 28, 1984, the SJC denied Petitioner’s new motions and affirmed both his conviction and the denial of his initial motion for a new trial. Id. at 363. In doing so, the SJC determined that the trial judge did not err “in admitting photographs of the victim’s body, taken at the scene, which showed his genitals,” or “in admitting a photograph which showed the back of the victim’s body and his bound hands.” Id. at 367. The former pictures “had probative value as depictions of the position and condition of the body as the police officers found it,” and the latter “was relevant because it showed the victim’s bound hands.” Id. (stating that the trial judge’s instructions cured “[a]ny prejudice which otherwise might have resulted from the association of the body’s position with homosexual activity”). Whether “the murder was in any way linked to homosexual activity was,” the SJC determined, “properly to be decided by the jury.” Id. The SJC also held that the state trial judge did not err when he admitted the pair of undershorts containing semen “consistent with the victim’s blood group.” Id. at 368. Despite Petitioner’s argument that “the admission of this evidence was prejudicial, because it suggested masturbation and homosexuality,” the court concluded that these undershorts, “found about four or five feet from the victim’s body[,] ... were especially relevant, since it appears from the record that there was no underwear on the body.” Id. In response to Petitioner’s claim that testimony concerning the victim’s conduct in the week before his death was irrelevant, the Healy I court held that “it tended to show that ... the victim had formed a sexual relationship with someone other than his girlfriend.” Id. Whether this “had anything to do with Chalue’s murder” was, the SJC determined, another matter left for the jury. Id. (“We cannot say that the testimony did not throw light on Cha-lue’s murder.”). The SJC also found “no basis” for the claim that “during the prosecutor’s cross-examination of defense witnesses ... he persistently made flagrantly prejudicial references to [Petitionerj’s homosexuality.” Id. at 372. In particular, the court addressed the question posed to Petitioner about whether he knew the victim was bisexual. Id. While the Commonwealth admitted at oral argument “that there was no evidence at trial that Chalue was bisexual,” the court concluded the question was not improper in light of Bendickson’s testimony during the voir dire hearing that the frequency of her sexual relations with Chalue had decreased over the six months prior to the murder and that Chalue had told her that, because at one time in his life he had been raped by his five brothers, he felt that he could not “please a woman.” Id. In addition, the SJC found that “[tjhere was no impropriety” in repeatedly asking Petitioner, Roy, and Petitioner’s aunt about whether Petitioner and Roy shared a bed, since “[t]he purpose of this questioning was to establish bias on the part of ... [Petitioner’s] most important witness.” Id. at 372-73 (noting that Petitioner’s aunt “had told the police officers that the two took turns sleeping on the couch”). The court also held that there was nothing improper about the prosecutor’s efforts, during closing argument, to convince the jury that neither Petitioner nor Roy hid their sexual preference. Id. at 373 (suggesting that the aim of such efforts was to discredit the explanations offered by Petitioner and Roy “as to why they had agreed to lie about the time [Petitioner] returned home after seeing Chalue”). Likewise, the SJC found the insinuation that Petitioner was naked at the time of the murder a “fair inference[] from the evidence.” Id. (citation omitted). While it would have been improper to have suggested that Petitioner’s homosexuality “made him more likely to commit murder,” or that his homosexuality in and of itself “was enough to link him to Chalue’s murder,” Healy I found that “[t]he prosecutor suggested neither.” Id. Instead, he merely “insinuated a sexual or homosexual element to Chalue’s murder which was ... fairly inferable from the evidence in the case.” Id. Finally, the SJC stated that it saw “nothing in the record of the lobby conferences of April 2 and April 16 to necessitate a further evidentiary hearing.” Id. at 375. Assuming arguendo that the jury foreman “did express to Ramy his views on [Petitioner’s] credibility,” this would “not constitute an extraneous influence.” Id. Accordingly, after holding that “the motion judge acted within his discretion,” id., the SJC denied Petitioner’s “motion for permission to interrogate jurors and witnesses.” Id. at 375 n. 17. B. Healy II. In 1994, Petitioner filed a motion to obtain the release of certain exhibits in order to conduct DNA testing. The motion was allowed in part, and the exhibits were sent to a laboratory in California chosen by Petitioner. On April 11, 1997, Petitioner filed a third motion for a new trial in the Superior Court along with a motion for additional discovery. (Dkt. No. 10, Ex. 10, Def.’s Mot. New Trial 1-2.) In response to that discovery request and subsequent subpoena, Petitioner finally received the three reports prepared by Dr. Wakefield. (Dkt. No. 10, Ex. 17, Super. Ct. Findings, Rulings, & Order 7.) On July 30,1999, Petitioner amended his third motion for a new trial, arguing that the Commonwealth’s failure to disclose the postmortem report and the note violated his federal constitutional rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). (Dkt. No. 10, Ex. 13, Def.’s Prelim. Mem. Supp. Am. Mot. New Trial 2.) The state Superior Court judge hearing the motion allowed Petitioner’s request for an evidentiary hearing, which was held on October 26, 2000. On May 8, 2001, the court issued its findings of fact, rulings of law, and order denying Petitioner’s motion. Among the facts the court found were the following: Two members of the state police and two Holyoke police officers attended the autopsy. Police communicated to Dr. Wakefield during the autopsy that they believed that this was a homosexual murder. Consequently, Dr. Wakefield closely examined the victim’s external genitalia and rectum for marks, redness, distension, abrasion, dried seminal fluid, or any other signs of sexual activity. At the direction of police present at the autopsy, Dr. Wakefield took swabs of the victim’s mouth and anus to test for the presence of spermatozoa. The test results were negative. (Dkt. No. 10, Ex. 17, Super. Ct. Findings, Rulings, & Order 4.) On February 13, 2003, the SJC upheld the Superior Court’s ruling. Commonwealth v. Healy, 438 Mass. 672, 783 N.E.2d 428, 430-31 (2003) (“Healy II”). In its opinion, the Healy II court provided the following summary of the Superior Court judge’s findings: In support of the amended motion for a new trial, an affidavit of trial counsel was submitted alleging that in preparation for trial he had received and reviewed the final diagnosis, but that he had not seen the postmortem report or the note and was not aware of the taking of any swabs. Following an evidentiary hearing on the issue of what items had been provided in discovery, the motion judge found that the hospital had forwarded both the postmortem report and the final diagnosis to the district attorney’s office. However, the district attorney’s office gave [Petitioner’s] trial counsel only the final diagnosis, not the postmortem report. The judge concluded that this failure on the part of the prosecutor was the product of inadvertence, not wilful misconduct. With respect to the note, the motion judge was unable to determine whether the hospital or Dr. Wakefield had ever turned the note over to the district attorney’s office, and hence did not find any form of pros-ecutorial misconduct with respect to the note. Notwithstanding the prosecutor’s failure to provide defense counsel with the postmortem report, the motion judge held that [Petitioner] did not meet his burden of showing that the postmortem report was exculpatory or material. He therefore denied the motion for a new trial. Id. at 432-33 (footnote omitted). In its decision, the SJC accepted the lower court’s finding that the postmortem report had not been produced. Id. at 433 n. 6 (stressing the need to defer to the judge’s “assessment of witness credibility”). It also found that, although the note was [not] within the prosecutor’s possession or control[,] ... had the postmortem report been turned over to defense counsel, it would have alerted him to the fact that oral and rectal swabs had been taken for further examination, and competent counsel would presumably have followed up on that information and thereby obtained the test results that are reflected in the note. Id. at 434 n. 8. “Thus,” the court continued, “although the Commonwealth’s obligation to turn over documents did not extend to the note, the failure to produce the postmortem report effectively deprived [Petitioner] of access to the note.” Id. Accordingly, the SJC considered whether the postmortem report and/or the note constituted exculpatory and material evidence for the purposes of the alleged Brady violation. Id. at 434 n. 8, 434. Ultimately, Healy II held that “even if the prosecution had supplied the [postmortem] report to [Petitioner] in timely fashion, the report or available evidence disclosed by it [i.e., the note] would not have influenced the jury.” Id. at 438 (citation omitted). In reaching this decision, the court reasoned that the suppressed evidence would not have undermined the prosecution’s “theory that the murder was connected with some form of sexual encounter.” Id. at 436. For the Healy II court, “[t]he absence of spermatozoa in the victim’s rectum or mouth mean[t] only that any sexual activity that occurred had not resulted in ejaculation in or around those specific areas.” More significant than the findings of the postmortem report and note were the semen-stained underwear found “[flour to five feet from the victim’s body.” Id. at 436 n. 10 (citing Healy I, 471 N.E.2d at 368) (calling this evidence “especially relevant”). “Similarly,” the SJC stated that “the absence of any ‘marks’ or ‘abnormal findings’ on the victim’s genitals and rectum mean[t] only that any sexual activity that occurred had not been sufficiently forceful or forcible to have inflicted visible injury.” Id. at 436; see also id. at 436 n. 11, (noting that Dr. Wakefield’s “examination of the victim’s rectum revealed ‘no distention ... no redness or tears,’ and that examination of the victim’s genitalia uncovered ‘no evidence that the penis was abraded or particularly red’ ”). Furthermore, [t]here is a wide range of sexual activity, up to and including many forms of sexual assault, that leaves neither sperm nor signs of injury to sexual organs. The Commonwealth presented no evidence, and did not make any suggestion to the jury, concerning precisely what forms of sexual activity may have taken place, or at what point in that sexual activity the encounter had turned violent, and no such precision with respect to the nature of the posited sexual encounter was even remotely necessary to the Commonwealth’s case. Thus, that Dr. Wakefield’s examination had arguably eliminated a few specific types of sexual activity did not, in any sense, undermine the evidence suggesting that the stabbing had occurred during the course of some form of sexual encounter. We agree with the motion judge’s conclusion that the postmortem report and note “would not have provided any more material information or raised any more doubts about the sexual nature of the crime.” Moreover, the theory that the murder had occurred during a sexual encounter was of significance to the case in only a narrow, limited sense. The Commonwealth did not even reference this theory in closing argument, except to counter one point raised during defense counsel’s closing argument.... [T]he Commonwealth’s theory did not rely on evidence of any specific form of sexual activity, nor did the Commonwealth suggest any motive for the stabbing of the victim. The only way in which the sexual nature of the encounter had any significance was to establish the reasonable possibility that the perpetrator may have been naked, so that the jury would not attach undue importance to the fact that [Petitioner’s] shirt was bloodstained in only one small area. The absence of sperm in the victim’s mouth or rectum, and the absence of signs of physical injury to his genitals or rectum, would not have detracted from the Commonwealth’s suggestion that the perpetrator may well have been unclothed at the time of the stabbing. [Petitioner] correctly points out that there was extensive reference at trial to [Petitioner’s] homosexuality. However, that issue was raised by [Petitioner’s] own explanation as to why he had initially lied to the police about his whereabouts on the night of the murder and why he had asked his partner to concoct a false alibi. [Petitioner] claimed that he had been reluctant to tell the police his true whereabouts because he had been at two “gay” bars. To illustrate the implausibility of this proffered explanation, the Commonwealth introduced evidence that [Petitioner] was openly homosexual, with no need or desire to conceal his sexual orientation. This evidence concerning [Petitioner’s] homosexuality had nothing to do with any theory how or why the murder had been committed, but was directed instead at the interpretation to be placed on what the Commonwealth had proffered as consciousness of guilt evidence. Id. at 436-37. “Similarly,” the court stated, “as part of its impeachment of [Petitioner’s] partner (who had given testimony favorable to [Petitioner] ), the Commonwealth introduced evidence of their long-standing intimate relationship for the purpose of demonstrating bias.” Id. at 437 n. 12. As illustration of the minimal significance that the issue of the hypothesized sexual encounter played at trial, defense counsel’s lengthy closing argument nowhere mentioned the fact that the Commonwealth had presented no physical evidence of any such sexual encounter. While [Petitioner] now protests that he would have made great use of the postmortem report and note had he had them at trial, he ignores the fact that, on the evidence presented at trial, he could have but did not register any criticism of the lack of evidence on this issue. We agree that, in the absence of the postmortem report and note, defense counsel would reasonably have refrained from cross-examining Dr. Wakefield on the absence of such evidence (for fear of eliciting some unforeseen harmful evidence). However, once the evidence was closed, defense counsel could have vehemently — and safely — argued to the jury that the prosecution had not presented any physical evidence from the victim’s body to corroborate that sexual activity had preceded the murder. The Commonwealth had not presented any evidence of seminal fluid or sperm on the victim, or any evidence of forcible penetration. If, as [Petitioner] now contends, it was crucial to his defense that he cast doubt on the theory that there had been a sexual encounter, it is puzzling that he did nothing whatsoever to cast doubt on that theory with the evidence (or lack thereof) that was presented at trial. We are not confronted with a situation where an argument made at trial could have been made more forcefully if defense counsel had had the withheld evidence. Here, there was no such argument made at trial. The only difference between the argument that could have been made at trial and the argument that could, have been made with the postmortem report and note was that the Commonwealth had looked for certain signs of sexual activity and not found those particular signs. If the absence of that particular evidence related to sexual activity had, in fact, been important to the defense, that absence would surely have been pointed out to the jury. Instead, [Petitioner’s] closing argument did not in any way contest the inference that the attack on the victim had occurred during the course of some unidentified form of sexual activity. What [Petitioner] now proffers as the “more plausible theory” to explain the condition of the victim’s body — that he was “set upon by looters,” “tied up simply to incapacitate and silence him,” and that “he managed to wriggle free of his boots (possibly dislodging his pants) and was stabbed to prevent his getting away” — is a theory that could have been, but was not, presented to the jury. Id. at 437-38 (citation omitted). In a footnote, the Healy II court stated that this theory was presumably not presented for the simple reason that the theory did not comport with other evidence. Aside from the implausibility of the notion that “wriggling free” of his boots would cause the victim’s pants to fall to his knees, the suggestion that the crime was perpetrated by “looters” was contradicted by the evidence of no forced entry, no sign of any rummaging through the victim’s belongings, and no missing property. It is also difficult to understand why “looters” would bypass numerous empty apartments and seek to loot the one apartment that was occupied by a man and his Doberman pinscher. The contents of the postmortem report would not have helped [Petitioner] overcome the numerous shortcomings of the now proffered theory that “looters” stabbed the victim. Id. at 438 n. 13. Finally, the SJC rejected Petitioner’s “contention that the postmortem report and note would have helped him establish that the police investigation was biased.” Id. at 438 (“From the condition of the victim at the crime scene — semi-naked, bound, pants pulled down, and genitals exposed — it would be reasonable for the police to consider and investigate the possibility that the murder had some connection to sexual activity.”). C. Magistrate Judge Neiman’s Report and Recommendation. On February 14, 2003, one day after the SJC’s decision, Petitioner filed this habeas corpus petition, and on July 1, 2003, Respondent tendered an answer. On December 1, 2003, Petitioner filed a memorandum in support of his petition as well as a motion for an evidentiary hearing on the issue of juror taint. In due course, Respondent filed memoranda opposing both the petition and the request, and Petitioner filed replies. In the meantime, this court referred the matter to Magistrate Judge Neiman. On September 9, 2004, he issued his report and recommendation. 1. Petitioner’s Brady Claim. In contrast to the Healy II court, Magistrate Judge Neiman concluded that the suppressed, exculpatory evidence would have raised doubts about the sexual nature of the crime and detracted from the prosecution’s theory of how and why the murder had been committed. In short, the Magistrate Judge found Healy II “[unjreason-ably concluded that the postmortem report and note concerned an issue of ‘minimal significance’ ” and “unreasonably disregarded the trial judge’s observation that the case was so close that even a ‘small matter’ could have changed the outcome.” (Dkt. No. 64, Report & Recommendation 26-27.) 2. Petitioner’s Request for an Eviden-tiary Hearing. In addition, Magistrate Judge Neiman determined that the AEDPA did not bar Petitioner’s request for an evidentiary hearing since he had been diligent in developing his jury taint claim in state court, and that Petitioner was entitled to such a hearing under the standard set forth in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), as modified by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). 3.Petitioner’s Insufficiency of Evidence Claim. Finally, Magistrate Judge Neiman concluded that while “there was sufficient circumstantial evidence to convict Petitioner of murder based on the record before the jury” (Dkt. No. 64, Report & Recommendation 39), he recommended that, in light of his other recommendations, this portion of the petition be denied without prejudice. III. DISCUSSION A. Petitioner’s Brady Claim. 1. Standard of Review. To establish a constitutional violation predicated upon the prosecution’s alleged failure to provide exculpatory evidence, Petitioner must prove that evidence favorable to him was suppressed by the state and that he was prejudiced by the suppression. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Where, as here, “the state court applied the proper rule of law by asking if the [petitioner] was prejudiced,” McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir.2002) (en banc) (citing Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936), a federal habeas court may not grant relief unless the state court’s adjudication “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States,” Norton v. Spencer, 351 F.3d 1, 6 (1st Cir. 2003) (citing 28 U.S.C. 2254(d)(1)) (2005), cert. denied, 542 U.S. 933, 124 S.Ct. 2876, 159 L.Ed.2d 798 (2004). While the Supreme Court has acknowledged the difficulty of defining the term, “unreasonable,” it has clarified that “an unreasonable application of federal law is different from an incorrect application of federal law.” Terry Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Accordingly, a federal court faced with an “unreasonable application” inquiry must ask whether the state court’s decision was “objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. In this circuit, “[t]he fact that one court or even a few courts have applied the precedent in the same manner to close facts does not make the state court decision ‘reasonable.’” McCambridge, 303 F.3d at 36 (quoting Valdez v. Ward, 219 F.3d 1222, 1229-30 (10th. Cir.2000), cert. denied, 532 U.S. 979, 121 S.Ct. 1618, 149 L.Ed.2d 481 (2001)). See also Norton, 351 F.3d at 8 (“A state court decision may be ‘unreasonable’ if it is devoid of record support for its conclusions or is arbitrary.”). On the other hand, “if it is a close question whether the state decision is in error, then the state decision cannot be ... unreasonable.” McCambridge, 303 F.3d at 36 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2nd Cir.2000)) (“[Sjome increment of incorrectness beyond error is required.”). “Importantly, the test does not demand infallibility: a state court’s decision may be objectively reasonable even if the federal habeas court, exercising its independent judgment, would have reached a different conclusion.” Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir.2002), cert. denied, 537 U.S. 1236, 123 S.Ct. 1360, 155 L.Ed.2d 202 (2003) (citations omitted). Cognizant of such strictures, this court now turns to the specifics of Petitioner’s Brady-based due process claim. 2. Analysis. Because the state pathologist’s inability to locate evidence of sexual activity clearly favored Petitioner, and Healy II held that such evidence was suppressed, the sole issue before the court is whether this suppression was prejudicial. To satisfy Brady’s prejudice prong, Petitioner must demonstrate that “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Strickler, 527 U.S. at 290, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). “[T]here is no prejudice under Brady ... unless there is ‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” McCambridge, 303 F.3d at 37 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)) (describing this as “the Brady prejudice or materiality standard”). This . “reasonable probability” requirement does not mean that Petitioner must prove that the disclosure of the postmortem report and/or the note would have led to a. different verdict, but rather that the suppression of this material- resulted in an outcome unworthy of confidence. United States v. Schneiderhan, 404 F.3d 73, 79 (1st Cir.2005) (citing Strickler, 527 U.S. at 289-90, 119 S.Ct. 1936; Kyles, 514 U.S. at 434, 115 S.Ct. 1555), cert. denied, — U.S. —, 126 S.Ct. 381, 163 L.Ed.2d 167 (2005). As the First Circuit has noted, the “somewhat delphic ‘undermine confidence’ formula” articulated in Strickler “suggests that reversal might be warranted in some cases even if there is less than an even chance that the evidence would produce an acquittal.” Conley v. United States, 415 F.3d 183, 185 (1st Cir.2005) (quoting United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir.1993), cert. denied, 512 U.S. 1223, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994)); see also United States v. Cunan, 152 F.3d 29, 34 (1st Cir.1998) (stating that a petitioner may be entitled to a new trial under Brady without convincing “the court of the certainty of a different outcome”). Here, the prosecution’s failure to .turn over the evidence in question “undermines confidence in the outcome of the trial.” Bagley, 473 U.S. at 678, 105 S.Ct. 3375. Any conclusion to the contrary would simply ignore how extremely close a case this was and fail to recognize the prominent role evidence and argument regarding homosexuality had in the trial. In Healy II, the court weighed the factual import of the withheld forensic evidence without ever placing it in the context of a “delicately balanced” case. (Dkt. No. 49, Tr. Trial Proceedings 25:3-4.) This was objectively unreasonable. See Dugas v. Coplan, 428 F.3d 317, 335 (1st Cir.2005) (“In a close case, the failure of defense counsel to present certain evidence or effectively challenge the state’s evidence on important issues can be particularly prejudicial.”). A review of the record reveals that the trial judge himself repeatedly stressed the delicate nature of this circumstantial case (see, e.g., id. at 68:22-69:4) and offered his opinion that even the slightest change in what came before the jury could have major ramifications, (id. at 25:4-5 (“[Ejven ... a small matter, if the jury found out about it, ... could tip the balance.”)). Respondent contends that the SJC was not “required to expressly discuss [the trial judge’s] comments.” (Dkt. No. 70, Resp’t’s Objections Report & Recommendation 17.) While this may be so, the court was required to ground its discussion in “the facts and circumstances of the case.” Bui v. DiPaolo, 170 F.3d 232, 243 (1st Cir.1999) (citation omitted), cert. denied, 529 U.S. 1086, 120 S.Ct. 1717, 146 L.Ed.2d 640 (2000). The record is replete with references to serious problems in the Commonwealth’s case. See Healy II, 783 N.E.2d at 431 (“Evidence that [Petitioner] committed the crime was entirely circumstantial.”). (See also Dkt. No. 10, Ex. 17, Super. Ct. Findings, Rulings, & Order 7 (“The Commonwealth had no percipient witnesses and no evidence of a motive.”).) The defendant had no criminal record, history of violence, or known antipathy towards the victim. Juror concerns about the evidence were reflected in their requests for further instructions on permissible inferences, reasonable doubt, and circumstantial evidence; their deliberations spanned four days, lasted nearly thirty hours, and ultimately required a sequestration order. None of this is mentioned in Healy II. Also missing from the opinion is any mention of the prosecutor’s two motions for a mistrial, or his concession that the case was so close “evidence, anything could tip th[e] balance.” In short, at no point did Healy II confront the fact that this was “a borderline case,” where “even a relatively small error” would have been “likely to tilt the decisional scales.” Ouber v. Guarino, 293 F.3d 19, 33 (1st Cir.2002) (citation omitted). Respondent strenuously objects to the consideration of evidence not found in, or contradicted by, the state court’s findings. In support of this position, the Commonwealth cites a litany of cases holding that state court factual findings are presumptivel