Full opinion text
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE PHILLIPS, District Judge. Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended Petition, records on file, and the Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Respondent has objected. Petitioner has not filed any written objections to the Report. The Court accepts the Magistrate Judge’s-Report and adopts it as its own findings and conclusions. The motion to dismiss is denied, and the matter is referred back to the Magistrate Judge for further proceedings. REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ZAREFSKY, United States Magistrate Judge. Pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California, the undersigned submits this Report and Recommendation to the Honorable Virginia A. Phillips, United States District Judge. In 1985, Petitioner Bruce E. Lisker was convicted in state court of murdering his mother. In 2004, he filed the present action, seeking a federal writ of habeas corpus. Resppndent has. moved to dismiss, arguing that the one year statute of limitations bars the action. See 28 U.S.C. § 2244(d). Petitioner counters that barring the action would work a miscarriage of justice under the theory of Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The Court of Appeals has instructed courts to fully develop the factual record when faced with a credible claim of innocence. Majoy v. Roe, 296 F.3d 770 (9th Cir.2002). After holding an extensive evidentiary hearing, the undersigned recommends that the Court deny the motion to dismiss. I. SUMMARY OF THE CASE AGAINST PETITIONER A. The Crime At 11:26 a.m. on March 10, 1983, Petitioner telephoned paramedics to report that his mother, Dorka Lisker, had been stabbed. The paramedics arrived shortly thereafter and administered emergency care, then transported Mrs. Lisker to the hospital. There she died around 3:00 that afternoon. Mrs. Lisker had been stabbed multiple times, more than twice in the back, with two knives which were recovered at the house. Also at the scene were a trophy and an exercise bar, known by its brand name as a “Bullworker.” Police suspected both were used to bludgeon Mrs. Lisker, who had extensive injuries to her head and one arm. Mrs. Lisker had a rope loosely on her neck, but it did not appear that she had been strangled. Los Angeles Police transported Petitioner to jail where Detective Andrew Monsue interviewed him at length. Petitioner was seventeen years old at the time. He told police that, from outside the house through the back windows, he saw his mother lying on the floor in the front entryway. Detective Monsue did not believe this or other aspects of Petitioner’s account. Detective Monsue also eventually determined that all the bloody shoe prints found inside the house and shoe impressions in the dirt outside the house were made by shoes similar to the Pacer brand of shoes Petitioner wore. Petitioner had a small amount of blood on him but not enough, according to police, to support his statement that he hugged and cradled his dying mother. Police knew that Petitioner had moved out of his parents’ house, that Petitioner and his parents argued frequently, and that money was missing from Mrs. Lisker’s purse. Police found no sign of forced entry beyond the kitchen window louvers removed by Petitioner, and found no indication that anyone besides Petitioner and his mother had been present inside the house. Soon after the interview with Detective Monsue, Petitioner was charged with murder. Petitioner continued to assert his innocence to police, telling Detective Monsue that he believed the actual killer was another juvenile named Michael Ryan. Detective Monsue investigated Ryan’s possible involvement and traveled to Mississippi to interview Ryan. Monsue’s notes state that Ryan was “convincingly cleared” by further investigation. The case against Petitioner went forward. B. The Proceedings Petitioner’s murder trial began in November 1984, but was aborted on December 4, 1984, when Petitioner agreed to plead guilty conditioned on his being placed in the California Youth Authority. Such placement would have meant that Petitioner could not be held beyond his 25th birthday. State officials determined, however, that Petitioner was not amenable for such placement and, the condition to the plea having failed, Petitioner withdrew his guilty plea. Trial began anew in October 1985. At the close of the prosecution case, the defense successfully moved to dismiss the first degree murder charge. The jury convicted Petitioner of second degree murder on November 21, 1985, and the court sentenced Petitioner to 16 years to life in state prison. (Clerk’s Transcript (“CT”) 368, 378-79; Reporter’s Transcript (“RT”) 1221-23, 1237.) The California Court of Appeal affirmed Petitioner’s conviction on December 22, 1988. (Motion to Dismiss, Exh. B.) The California Supreme Court denied habeas relief on April 25, 1989. (Motion to Dismiss, Exhs. F, G.) Petitioner again sought collateral review in State court fourteen years later. On January 31, 2003, he signed a petition for writ of habeas corpus which then was filed in the Los Angeles County Superior Court; that court denied the petition on March 6, 2003. (Motion to Dismiss, Exhs. H, I.) On July 28, 2003, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal which the court denied on August 5, 2003. (Motion to Dismiss, Exhs, J, K.) In both of these state court petitions, Petitioner argued that his delay in raising the claims therein should be excused under California’s “fundamental miscarriage of justice” exception. (See Motion to Dismiss, Exhs. H at 127-28, J at 238-40.) See In re Clark, 5 Cal.4th 750, 797, 21 Cal.Rptr.2d 509, 855 P.2d 729 (1993) (a petition’s untimeliness may be excused where a petitioner presents facts showing that ■ an error of constitutional magnitude led to .a trial so unfair that absent the error, no reasonable juror could have convicted the petitioner). In denying the petitions, the trial and appellate courts did not rule them untimely. On August 18, 2003, Petitioner filed a petition for review in the California Supreme Court which that court denied without comment on October 29, 2003. (Motion to Dismiss, Exhs. L, M, at 304.) Justices Werdeger and Kennard stated that the petition should have been granted. (See Motion to Dismiss, Exh. M at 304.) On April 16, 2004, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254, initiating the present action. Petitioner filed his First Amended Petition, deleting an unexhausted and non-cognizable claim, on May 12, 2004. After Respondent moved to dismiss the action and the matter was briefed fully, the Court held its evidentiary hearing over seven days from December 1 to December 9, 2005. Having reviewed the testimony from the hearing, the exhibits before the Court, and the proceedings in Petitioner’s trial, and having considered the written and oral arguments of the parties, the Court now recommends that the motion to dismiss be denied. II. THE TIMELINESS OF THE ACTION In enacting the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) in 1996, Congress imposed a statute of limitations on habeas petitions which provides: (d)(1) A 1-year period .of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). Petitioner’s conviction became final in 1989, well before the enactment of the AEDPA. Therefore, the one-year limitations period started running against Petitioner on the date of the AEDPA’s enactment, April 24, 1996. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Petitioner had until April 24, 1997 to timely file a federal petition. Petitioner suggests that he is entitled to equitable tolling because the attorneys who represented him between 1996 and 2001 performed deficiently or committed misconduct. (See Opposition to Motion to Dismiss, at 39^45.) Like all circuits which have considered the issue, the Ninth Circuit has held that AEDPA’s limitations period is not jurisdictional and therefore is subject to tolling. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002). A diligent petitioner may be entitled to equitable tolling where his attorney acts with extreme malfeasance. See Spitsyn v. Moore, 345 F.3d 796, 800 (9th Cir.2003). Petitioner’s allegations in this regard are troubling. Petitioner presents evidence that the two attorneys who represented him between 1996 and 2001 did little work on his case despite prodding from Petitioner. (See Opposition to Motion to Dismiss, Exh. 34.) But in 2001 Petitioner hired new attorneys, the team of lawyers who filed his 2003 round of state court petitions and then the present action in this Court. Nowhere in the record is there any allegation that the lawyers hired in 2001 were deficient in their representation of Petitioner. (On June 9, 2005, Petitioner substituted his current attorneys as counsel.) Because more than a year passed between the hiring of new attorneys in 2001 and the beginning of collateral attacks in 2003, equitable tolling based on attorney malfeasance does not render the present action timely. Petitioner also argues that the statute of limitations should not bar him from litigating the- merits of the First Amended Petition because the application of such a bar, in his case, would effect a miscarriage of justice. He relies on the doctrine enunciated in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), in the procedural default context. In that ease, the Supreme Court wrote that “[i]f a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims.” Id., 513 U.S. at 316, 115 S.Ct. 851. This argument raises both factual and legal issues. As noted, the Court of Appeals has instructed that the legal issues should be addressed only in the context of a fully developed factual record. That record follows. III. THE 1985 TRIAL The prosecution presented the case against Petitioner as follows: (1) Petitioner could not have seen his mother from outside the house as he told Detective Monsue. This was the critical lie told by Petitioner, and the fact that Petitioner would lie about being able to see his mother from outside demonstrated in itself that he was guilty, for Petitioner already must have known that she lay dying in the foyer. (2) There was no evidence that anyone other than Petitioner and his mother had been inside the house at the time of the murder; only Petitioner’s shoe prints and fingerprints were found in the house and there was no sign of forced entry, just the carefully removed louvers from the kitchen window. (3) Besides the lie about seeing his mother, Petitioner’s statement to Detective Monsue was filled with inconsistencies and Petitioner’s actions at the scene were suspicious. (4) Petitioner had blood on his clothing. (5) Petitioner had ongoing difficulties with his parents. He was living in an apartment and his parents’ house had been locked to him. He had stolen from his parents in the past and argued often with his mother, sometimes about his drug use. Robbery and animosity towards his mother were suggested as motives for the crime. Missing was $150 cash given to his mother the evening before the murder. (6) Petitioner confessed to a jailhouse informant, Robert Hughes, who repeated Petitioner’s confession at trial. (7) The defense did not suggest anyone else who might have committed the murder; it did not appear anyone else had either the motive or the opportunity to commit the crime. The trial evidence is explicated below. A. Petitioner Could Not Have Seen His Mother From Outside The House According to the prosecution, this was the critical lie told by Petitioner; it was the .necessary and sufficient indicator of his guilt. (RT 1081-82, 1092.) Prosecutor Phillip Rabichow explained that not only was the lie important because it showed that Petitioner must have known his mother was lying in the entryway, but also because there was no reason for Petitioner to lie to police unless he was guilty. (RT 1082.) Petitioner did not testify at trial. His statements to police were introduced in a tape of his interrogation by Detective Monsue and, to a lesser extent, through reports by other officers. (See RT 321, 833, 868-71.) In his statement to Monsue, Petitioner said that he went to his parents’ house to fix his car and became suspicious that something was wrong when his mother did not answer his knock at the front door. (Exh. 86:158-59.) Petitioner went to the back of the house to try to look inside. (Exh. 86:160.) Petitioner looked first through a back living room window, from which he thought he was able to see his mother’s feet on the ground. (Exh. 86:170, 86:184.) Not sure what he had seen, Petitioner moved to the dining room sliding glass door, also on the back of the house, where he definitely saw his mother lying on the floor. (Exh. 86:170-71; RT 272, 333, 347-54.) The prosecution disputed Petitioner’s story with evidence showing (a) that the day of the murder, March 10, 1983, was a bright, sunny day and the glare from the sun made it impossible to see into the house (see RT 268, 272-73, 996-97); and (b) that the victim’s body lay in such a position that it was not visible from either the living room or dining room windows. (RT 272-73.) Detective Monsue and police photographer Mike Wilson each testified that March 10, 1983 was a bright, sunny day and thus that there was a glare on the windows. (See also RT 489, 971-72, 984, 992-93.) Wilson took a series of photographs outside and inside the Lisker home on March 10, 1983, the day of the murder. (See RT 971.) He testified that after “our discussion this morning we established that it was approximately at 11:30” in the morning when he took the photographs on March 10; this was soon after the estimated time of the murder. (RT 979.) The sky in some of Wilson’s photographs from March 10 appears white or gray; Rabi-chow argued to the jury that it was white because the photos were overexposed. (RT 1187-88.) Wilson did not mention overexposure in his testimony. (See RT 969-97.) Petitioner’s father Robert Lisker testified that March 10 may have been an overcast morning; Lisker family friend and attorney Robert Johnson testified he did not recall the weather that morning. (RT 896-97, 947-48.) The extent to which there was a glare on the windows on March 10 also was proven with Wilson’s photographs taken on March 23, 1983, 13 days after the murder, at 11:00 a.m., also near the estimated time of the murder. (RT 265-66, 972.) Monsue and Wilson both testified that March 23, 1983 was a bright, sunny day, just like March 10, 1983. (RT 265-66, 268-69, 976.) Although Robert Lisker and Robert Johnson took photographs purportedly showing that Petitioner could have seen the victim from outside, the photographs they took did not develop correctly; the defense offered nothing to support their testimony. (RT 903-04.) In closing argument, Rabichow seized on this failure. (RT 1190-91.) ' The second problem with Petitioner’s story, according to the prosecution, was that Mrs. Lisker’s body was positioned such that it would have been impossible to see her, even without the glare. When paramedics arrived at the scene, Mrs. Lisker’s body was inside the foyer, lying in a pool of blood on an entryway rug. (RT 179, 184, 197-200.) Paramedic Jay Lovato testified that the victim was bleeding onto the rug most heavily from her back and upper torso. (RT 183-84, 197-98.) Detective Monsue did not see the victim in the house; .he based his assessment of the victim’s position on his interpretation of a sketch drawn by Petitioner during the jailhouse interview. (See RT 333-66, 407, 431-35.) Robert Lisker testified that Monsue and his partner, Detective Land-gren, assisted him in throwing away the blood-stained entry rug later in the day on March 10. (RT 919-20.) Rabichow argued that Mrs. Lisker’s head was positioned on top of the biggest bloodstains on the entryway rug. (RT 1083-85; see also Exh. 86:172.) Rabichow argued to the jury, based solely on Mon-sue’s observations, that this placement of the victim’s body was not in either of the lines of sight described by Petitioner even though it was “not contested” that one could see all the way to the entry hall from the dining room window. (RT 1087-92.) B. There Was No Evidence That Anyone Else Was In The House The prosecution argued that, with the exception of shoe prints left by the paramedics on the front porch, only Petitioner’s shoe prints were found in or around the house. (RT 1121.) Detective Monsue testified that bloody shoe prints found in the guest bathroom and in front of and facing the kitchen sink, and shoe print impressions found outside in the dirt, “resembled quite closely” Petitioner’s Pacer shoes. (RT 278-79, 300-06, 326.) The jury was shown photographs of the prints in the guest bath and outside the house; no photographs were taken of the bloody print left in front of the kitchen sink. (See RT 304-05.) The shoe print found in front of the kitchen sink was important to the prosecution case because it discredited Petitioner’s statement to Monsue that he had not approached the kitchen sink that morning. (RT 307, 326.) No shoe print expert was utilized by the police in the investigation or called as a witness by the prosecution; only Detective Monsue offered his opinion that the shoe prints were a match for Petitioner’s Pacers. (See RT 326, 423-26, 468-69,1121,1195.) At trial, the defense called Los Angeles police officers Greg DeRousseau and George Prado to testify that Petitioner exhibited concern for his mother when the police arrived at the scene. (See RT 829-38, 866-71.) Responding to one of the first questions from prosecutor Rabichow on cross-examination, each testified that he had been careful not to disturb the scene and had been careful not to step in blood. (RT 855-56, 874.) Rabichow suggested that the officers would not have left these shoe prints because “they preserved the scene.” (RT 1121.) The totality of the fingerprint evidence was that only Petitioner’s prints were found in the house and that they were found only on the window Petitioner told authorities he removed to enter the house. (RT 766.) There was no sign of forced entry other than through this same window. (RT 248, 263, 274-75.) According to Rabichow’s closing argument, there was no reason anyone other than Petitioner might have committed the crime, there was no suggestion that anyone else had either motive or opportunity to do so and there was no evidence anyone else had been in the house that morning — “[o]nly his footprint is in the blood.” (RT 1117-21.) C. Petitioner’s Statements To Police And Actions At The Scene Were Suspicious Petitioner was hysterical at his parents’ house when paramedics and police arrived. (RT 814, 821-22, 841-42, 868-71.) He yelled at both to help his mother, and he had to be restrained from trying to reenter the house. (Id.) Once Petitioner was transported to the police station from his parents’ house on the morning of March 10, 1983, he was interrogated by Detective Monsue. (RT 245-46; Exh. 86:158.) At some point in the interview, Detective Monsue told Petitioner that many of the things Petitioner was saying could not be true; Rabichow argued at trial that although he could not prove many of the statements were lies, Petitioner said many suspicious things to Monsue. (RT 1072-81.) The jury heard a redacted version of the interrogation. (See RT 17, 319-21.) D. The Blood Evidence Proved Petitioner’s Guilt The photographs introduced at trial showed blood spatters on the walls, floor, carpet, and rug inside the Lisker house. (See RT 295-311, 715, 725-33.) Petitioner also had some amount of blood on his person and clothing. (See RT 315-17, 734-44.) The prosecution called blood-spatter-analysis expert Ronald Linhart to explain the significance of the blood evidence. The blood in the house demonstrated to Linhart that the attack on Mrs. Lisker started in the master bedroom, went down the hall, and ended in the foyer where Mrs. Lisker lay on the entry rug. (RT 711-14, 725-34.) There was a large pool of blood on the entry rug. (See RT 310-11,1083-84.) Besides the two knives Petitioner removed from Mrs. Lisker’s back, two other implements were found with blood on them: a trophy and an exercise bar (the “Bullworker”), both found in the master bedroom. (RT 295-99, 312-13.) Linhart testified that the blood on Petitioner’s clothing was the result of blunt force trauma or castoff, but that the spatters could have resulted from the acts Petitioner described in tending to his mother. (RT 734-53.) In total, Petitioner had seven small drops and a small number of smears of blood on all of his clothing. (RT 735-44, 767-68.) The officer who drove Petitioner and Monsue to the police station observed no blood on Petitioner. (RT 823.) Rabichow argued to the jury that despite bludgeoning his mother with the trophy and the exercise bar, Petitioner did not have more blood on his clothing because most of the victim’s blood would spatter away from Petitioner as he was “swinging away, obviously” when he hit the victim with the weapons. (RT 1116— 17.) Linhart did not testify similarly. Based on Petitioner’s statement to Mon-sue that he hugged his bleeding mother, and based on Monsue’s description of how Petitioner physically showed him that he hugged the victim, Rabichow argued that Petitioner should have had more blood on him and that the lack of blood on Petitioner further demonstrated Petitioner’s deceit and guilt. (RT 345-46,1093-95.) E. Petitioner’s Difficulties With His Parents And Robbery Were The Motives For The Murder The prosecution introduced evidence that Petitioner had a poor relationship with his parents and with his mother in particular. The Liskers had asked Petitioner to move out of the house and were renting him an apartment at the time of the murder. (Exh. 86:179.) Petitioner admitted to Monsue that he used drugs and had stolen money from his parents on previous occasions. (See Exh. 86:169, 86:179.) The other motive for the murder was robbery. Robert Lisker testified that he gave Mrs. Lisker $150 in cash the night before the murder. (RT 223, 226.) Mr. Lisker testified that Petitioner was present at the Liskers’ house when Mr. Lisker gave his wife the money. (RT 223-24.) Detective Monsue testified that no cash was found in the victim’s purse, where she usually kept her money, and that the missing money never was recovered. (RT 224, 442.) Monsue testified that he could not remember if Petitioner possessed any cash when arrested. (RT 411-12.) F. Petitioner Confessed His Guilt To Inmate Robert Hughes In Jail The prosecution introduced the testimony of Robert Hughes, a former inmate who had been housed in the cell next to Petitioner. (RT 546-48.) Hughes testified that he met Petitioner when, in April 1983, he ministered to Petitioner through a hole in the wall between their cells. (RT 548-50, 579-80, 646.) Petitioner immediately told Hughes that he wanted to confess to him. (RT 549-50.) Petitioner told Hughes, “I killed my mother and I fucked up.” (RT 550.) Per Hughes, Petitioner’s mistake was forgetting to get rid of his clothes which were spattered with blood from beating the victim. (RT 550-51.) Hughes recounted that Petitioner told him he needed money to buy PCP but that his mother would not give him any money. (RT 551.) When she refused, Petitioner began looking through her purse to take money from her. (Id.) Mrs. Lisker caught Petitioner going through her purse and she ripped his shirt and slapped him. (RT 552.)- Petitioner went to the kitchen, retrieved two steak knives and found his mother in the hall where he stabbed her in the back and left the knives in her body. (Id.) According to Hughes, when Mrs. Lisker did not die from the stab wounds, Petitioner got the trophy and hit her in the head. (RT 553.) Hughes relayed that Petitioner told him, “It started in the bedroom.” (Id.) After hitting his mother with the trophy, Petitioner got the exercise bar and “wailed on her with that for a while.” (RT 554.) Finally, according to Hughes, Petitioner put a rope around his mother’s neck. (RT 557.) Petitioner told Hughes that his “alibi” was the story he told police and that he “did good because [he] called [his] father, the paramedics and the police” in that order. (RT 554-55.) Hughes remembered specifically that Petitioner said he called his father first before calling the paramedics. (RT 610-11.) Robert Lisker testified that Petitioner already had called the paramedics when Petitioner called him at work. (RT 230-32.) Rabichow argued that if Mr. Lisker’s version was true, the defense should have brought in the phone records to prove it. (RT 1110-11.) Hughes testified that he immediately wrote notes of Petitioner’s confession, but he did not have those notes at trial and could not remember anything about the physical appearance of the notes. (RT 581-82, 631-32, 689-90.). Hughes testified he destroyed or threw away the notes. (RT 582, 632, 649, 683.) He also testified that he either did give or may have given the notes to police. (RT 581-82, 632.) Hughes said he was sure he had the notes during his interview with police but there is no indication in the interview transcript that Hughes had any notes. (RT 582, 633-34.) Rabichow argued that Hughes’ story was reliable because the confession contained details only the killer would know and because Hughes accurately described the sequence of events suggested by the police investigation. (RT 1103.) Mr. Lisker and Petitioner’s first defense attorney testified, however, that Petitioner had with him in jail as early as March 1983, and therefore by the time when he spoke with Hughes, the police records from his case which Petitioner could have shared with Hughes. (RT 793-94, 927-28.) Rabi-chow argued that even if Hughes saw the reports, no one. would be clever enough to manufacture a confession from reading the police reports.. (RT 1103-04.) Rabichow told the jury that Hughes “adds a lot” to the prosecution case, but even without the confession to Hughes, the evidence was sufficient to convict Petitioner of murder. (RT 1098-99.) Perhaps Rabichow offered this last concession because Hughes’ testimony was inconsistent in numerous respects. Hughes both denied and admitted asking Petitioner for money and goods. (RT 575-80, 588, 591-92, 606, 937.) Hughes denied, but Ra-bichow agreed, that Hughes wrote letters to Petitioner acknowledging Petitioner’s innocence. (RT 602-06, 620-21, 626-30, 644-45, 657-58.) Hughes remembered minute details about Petitioner’s confession, but remembered essentially nothing about how he “ministered” to Petitioner. (See RT 595-98.) Robert Lisker testified that Hughes told Petitioner and Mr. Lisker he knew Petitioner was innocent. (RT 936, 941.) At some point during the proceedings against Petitioner, Hughes indicated he did not want to testify against Petitioner but changed his mind again when he saw Petitioner give him some .sort of signal. (RT 673-75, 694-95.) Hughes previously had testified against at least two other defendants in murder cases. (RT 574, 660-62.) Hughes stated that he “always” expected to get something in return for testifying against a defendant. (RT 584-85.) Hughes testified against Petitioner hoping to get assistance from Rabichow in reducing his sentence. (RT 599, 663-76; Augmented Clerk’s Transcript 261-66.) Hughes was released early because of Ra-bichow’s efforts on his behalf. (RT 571-73, 663-76; Augmented Reporter’s Transcript (“ART”) 372.) Before Hughes approached the police with information about Petitioner, police were contacted by two other inmates who reported that they also had solicited confessions from Petitioner. (Exh. 86:311-21.) Robert Lisker testified that Hughes told him that he too had been approached by these same inmates but that once Hughes questioned Petitioner about the crime, Hughes knew that the others were lying and were trying to “frame” Petitioner. (RT 935, 961-62.) . G. There Was No Other Likely Suspect In Petitioner’s first trial, Rabichow moved to suppress any evidence that Michael Ryan committed the murder. (ART 389-99.) The trial court granted the motion because the defense did not provide any persuasive evidence of Ryan’s involvement. (ART 399.) The court ruled identically in the second trial. (RT 2-13.) The jury heard nothing about another suspect, a fact Rabichow relied on in closing argument. (See RT 1121.) H. The Crime Scene Evidence The only police officer who testified regarding the collection of evidence from the crime scene was Detective Monsue, yet when he was questioned by the defense about items of evidence, his answer often was that he was not the officer responsible for the evidence. (See RT 457-59, 469, 503-04.) Monsue testified he did not test the house or any of the weapons for fingerprints (RT 457-59), did not have any police expert examine the shoe prints (RT 424, 469), did not take any photographs of Petitioner (other than the booking photograph) on March 10, 1983 (RT 477), and did not obtain or examine the Liskers’ telephone bill from March 10, 1983 to determine the order of calls made by Petitioner, as there was “no need” to do so. (RT 497-98, 519-20, 523.) No one other than Monsue analyzed the shoe prints. (RT 424-25, 469.) Certainly most troubling in this regard given the importance of the victim’s position in the house, Detective Monsue did not preserve, and instead, according to Robert Lisker, personally threw away on March 10,1983, the bloodied entryway rug upon which the victim was found. (RT 919-20, 946.) IV. THE CASE IN LIGHT OF THE NEWLY PRESENTED EVIDENCE The evidence adduced at the evidentiary hearing in this Court effectively dismantled the case the prosecution presented at trial. The weather and lines of sight were not as represented by police witnesses. The critical shoe prints were not made by Petitioner’s shoes. The blood evidence was equivocal. At least some of the missing money appears to have remained in the victim’s purse. Hughes’ credibility was even less than it appeared at trial. There was a likely suspect whose culpability appears not to have been investigated thoroughly by police. Detective Monsue’s credibility, which was central to the prosecution case against Petitioner at trial, has been called into question in significant ways. On the other hand, what remains to suggest his guilt are Petitioner’s own words. In 1984 and 1985, Petitioner pleaded guilty conditioned on his being found amenable for placement in the Youth Authority, and then admitted his culpability in proceedings testing his amenability for such placement. In later parole proceedings, Petitioner again admitted his guilt. Petitioner now argues that these statements were made only to gain favorable treatment in the penal system. All of these circumstances are discussed below. A. Petitioner Could Have Seen His Mother As He Described March 10, 1983, the day of the murder, was not a bright, sunny day as Monsue and Wilson repeated so many times at trial. At the evidentiary hearing, meteorologist Kenneth Clark provided meteorological charts and satellite images which demonstrated that the morning of March 10, 1983 between 10:30 a.m. and 11:45 a.m. in the area of the Lisker house was “pretty cloudy” to “overcast” and also hazy. (Evi-dentiary Hearing Transcript (“EHT”) I 150-51, 157-60, 165-67; Exhs. 18:2-3, 18A:2-3, 19:1.) From these charts and satellite images, Clark testified that the weather did not change significantly that day until sometime after 2:00 p.m., when the clouds moved away. (EHT I 161, 166-67; Exhs. 18:2-3, 18A:5, 19:1.) Clark testified that the clouds were of a high elevation on the morning of March 10, which would have allowed the penetration of more light than low clouds, but that these clouds also were thick, all of which left only dull sunshine. (EHT I 157-60, 165-67, 181-83.) According to Clark, there would have been shadows cast that morning, but it was not “sunny” out, especially because there was haze in the morning as well. (Id.; Exhs. 18:2-3, 18A:2-4, 19:1.) In response, Respondent introduced the testimony of Mike Wilson, the police photographer who took the photographs in 1983 and testified at Petitioner’s 1985 trial. (EHT II 64-65; Exh. 64.) The sum of Wilson’s testimony was that his photographs show that the morning of March 10; 1983 wás “bright” and “sunny.” Contrary to his testimony at trial, however, it turns out that Wilson did not in fact take any photographs of the Lisker house on the morning of March 10, 1983. He was not even called to the scene until after noon. (EHT II 85-86; Exh. 86:2, 86:10, 86:16.) Wilson numbered his photographs in the order they were taken and the photograph in exhibit 64:43 (therefore, the 43rd photograph taken by Wilson on March 10, 1983) shows a clock with a time of 1:42. (EHT II 67, 71; Exh. 64:43.) Wilson testified that he could assume it took about one minute to take each photograph, so that he likely took his first photograph near 1:00 p.m. on March 10. (EHT II 72-73; Exh. 64.) This is in accordance with the police records which show that detectives were not notified until 11:35 a.m. and the photo department was not notified until 12:35 p.m. (EHT II 85-86; Exh. 86:2, 86:10, 86:16.) Wilson testified that the photograph in Exhibit 64:2 (therefore, the second photograph taken by Wilson on March 10, 1983 and taken close to 1:00 p.m.) shows it was a sunny day because there are distinct shadows visible in the photograph. (EHT II 67;. Exh. 64:2.) Meteorologist Clark, however, testified that this same photograph was taken in the afternoon given the position of the sun in the sky, and that the visible sky comports with his weather reports; the sky was gray or white which does not suggest that it was a bright sunny day. (EHT I 163-64, 171-74; Exh. 64:2.) Mr. Clark’s description of this photograph is far more accurate that Mr. Wilson’s; the sky in the photograph is not blue. Rabichow acknowledged this at trial, speculating that the photograph had been “overexposed.” Just as at trial, Wilson did not offer a similar theory in his testimony at the evidentiary hearing. The Court was troubled by Wilson’s, testimony here. Wilson testified that he now had, over 20 years after the event, an independent recollection of the view from outside the back windows into the Lisker house on March 10,1983, and remembered that he “could see little or nothing inside the residence from outside” due to “[t]he reflection and the brightness level outside as contrasting to the lack of light inside.” (EHT II 76-77.) At trial in 1985, however, when asked if he had a recollection of looking through this same window on March 10,1983, Wilson answered, “I don’t remember doing it.” (RT 987.) Moreover, at trial in 1985, Wilson’s answer to many questions on cross-examination was that he had no recollection of the particular photographs because it had been so long since he had taken them and he had taken so many other pictures since then. (RT 979-89.) And, at the evidentia-ry hearing here, Wilson also had no memory that he had returned to the residence and taken pictures there on July 1, 1983. (EHT II 78-79; Exh. 16:4.) At the evidentiary hearing, Wilson also had an unreasonably hard time acknowledging that there might be, in general, different degrees of sunniness or cloudiness. (EHT II 79.) Wilson was asked to compare what appears to be blue sky visible in photograph 83, taken near 2:20 p.m., with the gray or white sky clearly visible in photographs 2 and 5, taken closer to 1:00 p.m. (EHT II 80-81; Exhs. 64:2, 64:5, 64:83.) After a long pause, Wilson offered the following: “I would say that in 64:2 and 64:5, there are — there might have been some haze, but it was a bright, sunny day.” (EHT II 80-81.) Wilson similarly refused to acknowledge the hazy or gray sky in other photographs as well. (EHT II 81.) Further, of course, is the serious misstatement in Wilson’s 1985 testimony, given after discussion with unnamed persons, that he began taking photographs on March 10 at 11:30 in the morning. When asked at the evidentiary hearing about this discrepancy, Wilson suggested that his testimony had been that 11:30 would have been the time he received the call, not the time he went to the residence. (EHT II 84). This would not have been accurate either, however. (Exh. 86:2, 86:10, 86:16.) Rabichow asked him at trial if he was misremembering the date. (RT 990-91.) The evidence before this Court overwhelmingly showed that the morning of March 10, 1983 in the area of the Lisker home was not bright and sunny. It was overcast, cloudy and hazy. On the other hand, March 23, 1983, the date on which photographs were taken showing a bright glare on the back windows of the Lisker house, was, without question, a “bright, sunny day.” According to the charts and satellite images provided and interpreted by meteorologist Clark, at 10:45 a.m. on March 23, there were only scattered clouds, which was a “considerable difference” from the morning of March 10, 1983. (EHT 1 168-69; Exhs. 18:5, 18A:8-9, 19:2.) According to Clark, the morning of March 23, 1983 was a “bright sunny morning” with “puffy little clouds.” (EHT 1 168-69.) In satellite photographs from March 23, one can see almost all of the ground, in contrast to ,the images from March 10 showing heavy cloud cover. (EHT I 169; Exhs. 18A:8-9,19:2.) Wilson testified that he remembered being at the house on March 23, 1983 and taking the photographs there. (EHT II 73; Exh. 74.) Although this point was not pursued, Wilson testified that he did not believe he had used a flash for the photograph looking through the sliding door on March 23 as he had on March 10. (EHT II 74-75; Exh. 64:10.) The photographs taken on March 23 looking through the back windows show a bright glare on the windows; they were taken looking in through the windows and sliding door on the back of the house. (EHT II 82; Exh. 74:1-5.) Wilson did not dispute that March 23 was “quite a bright day.” (EHT II83.) In this Court’s review of the photographs taken on the two days, there is a noticeable difference in the brightness of items outside the house, especially the pool and plants in the backyard. (Compare Exh. 74:1 with Exhs. 64:9 and 64:34.) On the other hand, photographs taken from outside the sliding door on March 23 appear to show that even with the glare on that day, it was possible to see through all the way to the entryway of the house. {See Exhs. 74:3-5.) Also important to the question of whether Petitioner could have seen his mother from the back yard windows were the placement of her body and the lines of sight from the two windows. At the evi-dentiary hearing, Petitioner and Respondent offered testimony from reconstruction experts Frank Terrio (for Petitioner) and Michael Varat (for Respondent) who agreed that they were able to determine, with various specialized techniques, the placement of specific objects inside the house such that they were able to theorize where Mrs. Lisker’s body might have lain on March 10, 1983. {See EHT I 104-19, EHT IV 102-27; Exhs. 20, 154, 155.) The experts agreed on the placement of the entryway rug (and the blood stains thereon), the planter abutting the entryway, and the dining room table. (EHT I 115-19, 139-40, EHT IV 104-27.) Terrio concluded that when he placed a model with her head in the position where the largest blood stain was located on the entry rug, in accordance with the prosecution theory at trial (see EHT 1 102-03; RT 197-98, 1083-85), the model’s head and upper body were visible through the closed dining room sliding glass door from any vantage point over five feet. (EHT I 119-30; Exh. 20:16-17.) Varat agreed that when the body was placed in this position, her head and upper body were visible through the dining room door except through the westernmost side on the door. (EHT IV 137-39, 154, 159-61; Exh. 155:10.) Varat concluded that the model’s feet would have been visible from the living room window, while Terrio thought this view was inconclusive. (EHT I ISO-31, EHT IV 138-39; Exh. 155:9.) Varat also tested two other body placements; he labeled them the “Monsue version” and “Lovato version.” Varat concluded that only in the “Monsue version” would the victim’s head not have been visible through the dining room window. (EHT IV 133-37; Exh. 155:3, 155:7.) This placement of the body, however, is not supported by the reconstruction and placement of the entry rug and is not in accord with the prosecution’s arguments at trial; Monsue himself never saw the victim at the scene. (RT 336-39, 358-59, 433-35; Exh. 86:13, 86:16.) In fact, this placement of the victim’s body — lying entirely off the hallway rug — is contrary to even Monsue’s description of Petitioner’s sketch, which placed the victim’s body at least partially on that rug. {Compare RT 431-35 with Exh. 155:1.) The reconstruction diagrams and photographs, in conjunction with the crime scene photographs, convince this Court that the victim’s head, if not her whole-upper body, would have been visible from the dining room sliding glass door, as Petitioner described. ' In fact, when he returned to complete a reconstruction of the scene in 2005 with two reporters from the Los Angeles Times, prosecutor Rabichow was surprised to discover that from outside the dining room door he was able to see a person lying in the position in which he had argued the victim had lain. (EHT I 61-74, 102-03.) Rabichow had not visited the crime scene prior to trial; his argument that Petitioner lied — the “critical lie” — was based only on information provided by Detective Monsue and through Mike Wilson’s photographs. (EHT I 50-51.) Rabichow testified he had been made aware that Detective Monsue threw away the bloodied rug on March 10. (EHT I 52.) B. Shoe Impressions In The Guest Bathroom, Outside The House And, Possibly, On The Victim’s Head, Were Not Left By Petitioner In 2004, Ronald Raquel, a criminalist with the Los Angeles Police Department for 19 years, analyzed photographs of the shoe impressions which the prosecution had argued at trial were made by Petitioner’s shoes. (EHT I 185-88; Exhs. 6, 11, 65-68.) Raquel concluded that the shoe impression left outside in the dirt (“print B”) actually contained the impressions of two different shoes. (EHT I 188-89; Exhs. 6, 11, 14, 65, 67.) One of these prints, labeled by the parties “print B-l,” was consistent with Petitioner’s shoes, but the other print, labeled “print B-2,” was made by a shoe with a herringbone pattern on the sole and could not have been made by Petitioner’s shoes, which had a wave pattern. (EHT 1 188-90,194-95; Exhs. 6, 11, 14, 65, 67.) Raquel concluded that the bloody shoe print left in the guest bathroom (“print G”) also was made by a shoe with a herringbone pattern and could not have been made by Petitioner’s shoes. (EHT I 190, 194-95; Exhs. 6, 11, 14, 65, 66.) Raquel concluded that the shoes which left prints B-2 and G had a similar herringbone design; the prints could have been made by the same shoes. (Id.) Raquel’s supervisor concurred with his findings. (EHT 1190.) Called as a witness by Respondent, FBI Analyst Sandra Wiersema, an expert working exclusively in shoe prints and tire tread evidence, agreed, as substantiated in her July 2005 report, with Raquel’s findings that print B-2 and G had characteristics similar to one another and could not have been made by Petitioner’s shoes. (EHT IV 54-64, 69-71; Exh. 15.) To cast doubt on Petitioner’s suggestion that the shoe impressions were left by the perpetrator of the crime, Respondent introduced the testimony of former Los An-geles police officers DeRousseau and Prado, the two officers who had responded first to the crime scene in 1983. (EHT III 5-18, 36-48.) Both claimed now to remember details not contained in their contemporaneous written reports or mentioned in their trial testimony about their two-to-three minute “protective sweep” of the Lisker house. (See RT 839, 869; EHT III 25-30, 45-48, 52.) Both officers testified at the evidentiary hearing, in accordance with their testimony at trial, that they attempted not to disturb the crime scene or step in blood. (EHT III 10, 21, 44, 52.) DeRousseau also testified here, contrary to his trial testimony, that during this sweep, he “probably” stepped in blood. (EHT III 10.) Prado reluctantly answered that he avoided stepping in the blood near the victim’s body but also testified that it was possible he left the bloody shoe print in the guest bathroom even though he didn’t notice himself leaving bloody shoe prints at the time. ' (EHT III 46, 54-56.) Further, DeRousseau testified here that he now could see in crime scene photographs blood stains on the carpeting in the house that he independently remembered he did not see in 1983. (EHT III 34-35; Exhs. 64:93-95, 64:101, 64:103.) Prado did not go this far, but did testify that many times, officers cannot see blood on the floor or in carpet. (EHT III 44.) Both officers testified here that in their March 10, 1983 protective sweep they entered the guest bathroom where print G was found. (EHT III 12-13, 42-43.) DeRousseau also testified here, contrary to his trial testimony, that during this sweep, he “probably” stepped in blood. (EHT III 10.) Prado reluctantly answered that he avoided stepping in the blood near the victim’s body but also testified that it was possible he left the bloody shoe print in the guest bathroom even though he didn’t notice himself leaving bloody shoe prints at the time. (EHT III 46, 54-56.) In their reports written on March 10, 1983, however, wherein both officers listed the rooms they searched, neither officer indicated that he had entered the guest bathroom. (EHT III 28-29, 50-51; Exh. 86:365-365a, 86:366-67.) Nor did either officer testify at trial that he entered the guest bathroom. (See RT 838-39, 869, 874-75.) DeRousseau explained at the evidentiary hearing that he never said he entered that bathroom because nobody ever asked him specifically whether he searched that bathroom — even though he was asked which rooms he searched. (EHT III 25-28.) He also testified here that he went outside to search, although Prado did not see him do so, and therefore that his shoes could have made the impression in print B-2. (EHT III 15-16; RT 839; Exh. 67.) The officers’ testimony regarding their search was not credible for many reasons, not the least of which was the officers’ claimed ability to remember minute details such as whether they noticed specific blood stains during their quick search 20 years earlier. This Court also is troubled by the fact that the officers’ reports and trial testimony were at odds with their testimony here.. (See EHT III 23-30.) Of course, neither officer remembered anything about the shoes he Wore that day, so any suggestion that one of the two left the prints would be pure speculation. (EHT III 13-14, 45, 54-55.) Petitioner demonstrated to this Court that the bloody shoe print in the guest bathroom and one of the shoe impressions in the dirt outside the house were left by someone other than himself, disproving the State’s 1985 theory of his guilt. Moreover, it appears likely that the shoe prints were not left by police personnel. There is no suggestion that any other official party might have left the prints. The importance of the shoe print evidence, as conceded by Rabichow at the evidentiary hearing, is that it is inconsistent with the prosecution’s argument at trial that Petitioner committed the murder by himself arid that there was no one else present. (See e.g. EHT I 39-42.) Petitioner suggests that one more shoe print has been found as well. In reviewing autopsy photographs as part of his recent investigation of Petitioner’s case, Los An-geles police officer Albert James Gavin noticed what appeared to him to be a shoe impression on the victim’s head. (EHT II 187-88.) He contacted Raquel with the information. Raquel reported to Gavin that the impression on the victim’s head, which measured 1.5 inches by .5 inches, was made by a shoe. (EHT I 192-93, EHT II 24-25, 35-37; Exhs. 12, 14, 16:1, 16:3.) Raquel testified here, “I do foresee that there is a possibility out there in the world that there is a tool [that could make this impression]. I haven’t seen it yet. But I do see shoe.prints, and this is similar to what I see in shoe comparison.” (EHT II 26.) Respondent disputes that the impression on the victim’s head was made by a shoe. However, Steven Dowell, a tool mark expert for the Los Angeles County Coroner’s office, did not determine any specific tool that could have or did produce the impression; nor was he provided with any such implement by the State. (EHT V 37-43.) Raquel concluded that the impression could not have been made by Petitioner’s shoe; it had no characteristics in common with the Pacer shoe. (EHT I 193-96, EHT II 17-18, 38; Exhs. 12, 14.) The impression, however, had characteristics in common with prints B-2 and G; it appeared to be a herringbone pattern with similar spacing between the lines. (Id.) While FBI expert Wiersema did not find anything to suggest that the mark was made by a shoe, presumably aside from the fact that it matched to a degree the known shoe prints in this case, she also could not conclude it was not a shoe print; she was provided with no object by the State which might have made the impression. (EHT IV 74-79, 94-96.) In comparing prints B-2 and G with the impression on the head using one of the autopsy photographs, Wiersema concluded that the spacing between the lines did not match. (EHT IV 73; Exh. 16:1.) Using a different autopsy photograph, however, which showed a ruler placed closer to the impression on the victim’s head and which therefore may have offered a more reliable measurement of the marking, the spacing between the lines in prints B-2, G, and the head impression was the same. (EHT IV 74-77, 90-94; Exhs. 15:11, 71:2-3.) Because no other measurements could be made, Wiersema could not conclude the three prints were made necessarily by the same item. (EHT IV 94.) Of course, both officers DeRousseau and Prado testified that they did not step on the victim’s head or any other part of her body. (EHT III 21, 32-33, 56.) Rabichow testified that at trial he was not aware of the patterned impression on the victim’s head; he had not previously reviewed the autopsy photograph showing the mark. (EHT I 36-38.) Dr. Golden, who performed the autopsy of the victim and testified at trial, testified here that the most severe injury to the victim’s head was a fracture on the right side to the base of the skull, presumably near the location of the impression similar to the shoe prints in prints B-2 and G; the mark near the ear was noted in the March 1983 autopsy. (EHT IV166-73; Exhs. 72:4, 73:5.) C. Contrary To The California Court of Appeal’s Characterization Of The Evidence, The Blood On Petitioner Was As Consistent With His Innocence As With His Guilt Petitioner had a very slight amount of blood on his clothing. For example, the single drop of blood found on his left shoe was 2 millimeters by 3.5 millimeters; the drop on the right shoe was 1 millimeter in diameter. (EHT III 88; see also Exhs. 69, 77.) As noted, blood expert Ronald Linhart testified at trial that the blood evidence was as consistent with Petitioner’s explanation of his innocence as it was with the prosecution’s theory of guilt. Moreover, Linhart did not testify either at trial or at the evidentiary hearing, as Rabi-chow argued to the jury at trial, that Petitioner likely would have had no blood on him after bludgeoning his mother because the blood would spatter away from Petitioner’s body as he “swung away” with a weapon; such a conclusion appears to this Court as tenuous at best. Respondent called Linhart as a witness at the evidentiary hearing here. When offered hypothetical situations by Respondent and Petitioner, Linhart’s testimony was consistent: whether Petitioner would have been spattered with any specific amount of blood as he held or hugged his mother was entirely dependent on Petitioner’s and his mother’s body positions. (EHT III 68-86.) The evidence in this regard was inconclusive; no significant evidence was added from the trial testimony. Linhart made clear, however, that he could not conclude from the blood evidence that Petitioner murdered his mother. (EHT III 87; see also Exh. 86:29.) He characterized the blood evidence as “insufficient by itself for such a conclusion.” (EHT III 87.) Moreover, Linhart stated that he did not reach the conclusion attributed to him by the California Court of Appeal, that blood was transferred onto Petitioner’s clothing at the moment when the victim suffered a blunt force injury. (Id.; see also Motion to Dismiss, Exh. B, at 29.) D. One Of The Suggested Motives For The Murder, The Robbery Of Mrs. Lisker, Is Not Supported By The Evidence The prosecution theory at trial was that Petitioner, who said he went through his mother’s purse, actually took the $150 cash from the purse. There is nothing to suggest that any money was found on Petitioner, although Monsue testified at trial he had no memory one way or the other. (See RT 411-12.) A recent review of the Superior Court file, however, disclosed a post-trial inventory of the contents of Mrs. Lisker’s purse which listed the purse as containing $120 cash. (EHT IV 44-48; Exh. 21.) Prosecutor Rabichow was not aware at or before the 1985 trial that there was cash in the purse. (EHT I 23.) The other motive for the murder, animosity between Petitioner and his mother, was attested to by a witness at the eviden-tiary hearing. While the witness noted that the two argued or had a contentious relationship, he never saw Petitioner use physical violence against his mother. (EHT IV 177-86; see also Exh. 109.) On March 10, 1983, Police Officer DeR-ousseau described Petitioner as concerned about his mother and hysterical, yelling repeatedly, “Help my mother, help my mother. Someone stabbed her.” (EHT III 19, 24, 49; see also Exh. 86:369-375.) This Court has listened to Petitioner’s 911 call wherein Petitioner certainly could be described as hysterical. (Exh. 97.) Neither Petitioner’s statements to authorities at his house nor his statements to Monsue in the jailhouse interview themselves strike this Court as unusual. Whether they were contrived depended on other evidence, all of which has been undermined. E. A Claim That Petitioner Confessed To Robert Hughes Is Not Credible Aside from the inconsistencies and motive for falsification apparent from Hughes’ trial testimony and aside from the fact that Hughes already had offered testimony in two other murder cases (see Exh. 86:712-17), it was disturbing to learn that inmates other than Hughes told police that Petitioner also confessed to them. (EHT II 163-64; Exh. 86:311-321.) Detective Monsue and his partner, Detective Landgren, interviewed one of these other inmates, Michael Dowtu, in April 1983. (EHT II 165-66; Exh. 86:314-321.) That interview contains the following exchange between Dowtu and the detective: Dowtu: If this guy — I’d be talking to him. If he comes up with something else. Detective: Well, a, now if I was to tell you to go ahead and talk to him some more, you’d be acting as my agent. Dowtu: Oh, I see. Detective: And you can’t do that, but we will be coming back up here to see you again. (EHT II 167-68.) The detective was correct. It would have been illegal for him to tell the prisoner to talk with Petitioner, because police then would have violated Petitioner’s Sixth Amendment right to counsel. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Yet to investigator Gavin, this exchange showed the detective telling Dowtu through a “wink and a nod” to question Petitioner. (EHT II 168.) This information adds further doubt to the reliability of the already shaky testimony from Hughes, an experienced informant housed next to a juvenile on suicide watch. (See e.g. Exh. 38.) In addition to the lingering question of whether Hughes relied during his interview with police on notes which were not preserved by police, the only recorded contact with Hughes was his July 6, 1983 interview with Mon-sue, but in that interview, Hughes said he previously had spoken with Detective Landgren. (EHT II 169-70; Exh. 99:8.) (Hughes told Monsue that Petitioner confessed to him in April 1983. (Exh. 99:6.)) In the chronological record contained in the police “murder book,” moreover, the first entry regarding Hughes is noted, out of chronological order in the record, as having occurred on October 10, when a Beverly Hills Police Department sergeant reported that he had an informant to whom Petitioner had “copped out.” (EHT 11170-72; Exh. 86:8.) Moreover, Hughes’ version of the crime does not follow what the police, or at least Detective Monsue, said was the sequence of events on March 10. In a 1998 letter to the parole board urging that Petitioner be denied parole, Monsue wrote that Petitioner beat his mother with the exercise bar, then stabbed her as part of a cover story. (Exh. 2.) This is entirely different from Petitioner’s confession as related by Hughes. (Exh. 99:1-7.) Finally, the police file contains the original handwritten notes of the detectives’ interview with Hughes. Those notes show some confusion over the exact words in one instance, but the handwritten notes seem to report that Hughes said, “I don’t want to blow my cover” with Petitioner, whereas the final typed transcript says, “I don’t want to pull my covers.” (Compare Exh. 99:7 with Exh. 86:752.) What is important about this discrepancy is both that the handwritten version appears more sinister in terms of Hughes’ motivation and that it could suggest that police might have changed the substance of Hughes’ statement in any respect. In all, the trial transcript and evidence presented at the evidentiary hearing demonstrate that Hughes was not credible and his report of Petitioner’s confession cannot be accorded any significant weight. F. There Was Another Likely Suspect In The Murder At trial, the prosecution successfully moved to suppress any evidence suggesting Mich