Full opinion text
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE VIRGINIA A. PHILLIPS, District Judge. Pursuant to 28 U.S.C. § 636, the Court has reviewed the Second Amended Petition, records on file, and the Second Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Second Report to which objections have been filed. The Court accepts the findings and recommendations of the Magistrate Judge. SECOND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RALPH 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 Second Report and Recommendation to the Honorable Virginia A. Phillips, United States District Judge. The undersigned recommends that the Court grant the Second Amended Petition for Writ of Habeas Corpus as to its second, third, and fourth claims if the State of California does not retry Petitioner. The undersigned recommends that the Second Amended Petition be denied as to its first claim for relief. I. PROCEDURAL BACKGROUND On November 21,1985, Petitioner Bruce E. Lisker was convicted of second degree murder. 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. (Respondent’s May 18, 2004 Motion to Dismiss the Petition (“Motion to Dismiss”), Exh. B.) Petitioner did not petition for review in the California Supreme Court on direct appeal, but instead filed a petition for writ of habeas corpus in that court in 1989. (Motion to Dismiss, Exh. F.) The court denied habeas relief on April 25, 1989, finding that Petitioner failed to allege sufficient facts in support of his claims. (Motion to Dismiss, Exh. G.) Petitioner again sought collateral review in State court fourteen years later when, on January 31, 2003, he signed a petition for writ of habeas corpus for filing in the Los Angeles County Superior Court; the 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 petitions, Petitioner argued that his delay in raising the claims therein should be excused pursuant to California’s “fundamental miscarriage of justice” exception. (See Motion to Dismiss, Exhs. H, at 127-28; J, at 238-40); 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). Neither petition was denied as untimely. On August 18, 2003, Petitioner filed in the California Supreme Court a petition for review of the appellate habeas denial; the court denied the petition without comment on October 29, 2003. (Motion to Dismiss, Exhs. L; M, at 304.) Justices Werdegar and Kennard stated that the petition should have been granted. (See Motion to Dismiss, Exh. M, at 304.) On April 16, 2004, Petitioner filed the Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 initiating the present action in this Court. Petitioner filed his First Amended Petition, deleting an unexhausted free-standing claim of actual innocence, on May 12, 2004. Also in May 2004, Respondent moved to dismiss the action as untimely. Prior to deciding the motion, the Court held an evidentiary hearing over seven days from December 1 to December 9, 2005. Thereafter, the Court recommended that the Motion to Dismiss be denied because Petitioner showed that it was “more likely than not that no reasonable juror would have convicted him in the light of the new evidence” and therefore that his failure to comply with the statute of limitations should be excused. Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (developing rule in procedural default case); see also House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (applying Schlup standard in procedural default case). On October 10, 2006, the District Court accepted the Report, adopted its recommendation, and denied Respondent’s Motion to Dismiss. See Lisker v. Knowles, 463 F.Supp.2d 1008 (C.D.Cal.2006). On October 16, 2006, this Court ordered Respondent to file an Answer to the merits of the First Amended Petition. Before the Answer was filed, on November 3, 2006, Petitioner requested leave to file a Second Amended Petition to add claims which had arisen from the evidence adduced at the 2005 evidentiary hearing. Respondent opposed the request and declined to waive the requirement that new claims must first be exhausted in State court. On January 12, 2007, the Court granted Petitioner leave to file the Second Amended Petition and also granted his request to stay the proceedings while he returned to State court to exhaust the new claims. The proposed Second Amended Petition was ordered filed the same day. On February 13, 2007, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (See Petitioner’s February 13, 2007 Notice of Filing of State Petition for Writ of Habeas Corpus.) In a 106-page informal response, Respondent argued at length that Petitioner’s claims were successive and untimely raised and therefore procedurally barred. (See Traverse, Exh. A, at 98-183.) The State court agreed and, on November 14, 2007, denied the petition as untimely. (See Petitioner’s November 21, 2007 Application for Order Vacating Stay (“Petitioner’s App. to Vacate Stay”), Exh. A.) On December 4, 2007, this Court ordered Respondent to file an Answer to the merits of the Second Amended Petition. Respondent filed his Answer on April 2, 2008. Petitioner filed his Traverse on June 2, 2008. On July 2, 2008, the Court ordered both parties to clarify by motion whether they were requesting a further evidentiary hearing. Petitioner did not request a further hearing on any claim of his own, but, in an unusual move, on July 28, 2008, Respondent moved for an evidentiary hearing on Petitioner’s second claim for relief, a claim alleging that Petitioner received ineffective assistance of counsel. Petitioner opposed the motion, asserting that the claim could be resolved on the existing record. After a hearing on August 18, 2008, the Court granted Respondent’s motion. The second evidentiary hearing was held on October 31, 2008. In late November 2008, the parties submitted post-hearing briefing. II. PETITIONER’S CONVICTION The facts of Petitioner’s conviction are recited in this Court’s earlier Report. See Lisker v. Knowles, 463 F.Supp.2d 1008. A portion of the factual background is repeated here to make the record complete. 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, both of which police suspected were used to bludgeon Mrs. Lisker, who had extensive injuries to her head and one arm. Los Angeles Police transported Petitioner to jail where Detective Andrew Monsue interviewed him at length. Petitioner was 17 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. 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. 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 (“CYA”). 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 CYA placement and, the condition to the plea having failed, Petitioner withdrew his guilty plea. Trial began anew in October 1985. The prosecution case against Petitioner consisted of various pieces of circumstantial evidence, the first and most important of which was Petitioner’s critical and, in the prosecutor’s words, “most condemning” lie that, from outside his house, he saw his mother lying on the entryway floor. (RT 1081-82, 1092.) Petitioner did not testify at his trial. His statements were introduced to the jury by way of his interrogation by Detective Monsue. (See Exhibit from Federal Evidentiary Hearings (“Exh.”) 86, at 158-209; RT 321.) The jury could tell Petitioner was lying, the prosecutor said, because it was shown that the day of the murder was bright and sunny, and therefore there was a severe glare on the back windows making it impossible to see into the house, and also because the victim’s body would not have been visible from the back windows even absent the glare. (See e.g. RT 268, 272-73, 996-97.) Second, there was no evidence that anyone other than Petitioner and his mother had been inside the house at the time of the murder. (RT 1117-21.) Only Petitioner’s shoe prints and fingerprints were found in the house and there was no sign of forced entry, just the louvers Petitioner said he had removed from the kitchen window. (RT 248, 263, 274-75, 766.) Third, Petitioner’s statement to Detective Monsue was filled with inconsistencies beyond the crucial lie about seeing his mother, and Petitioner’s actions at the scene were suspicious. (RT 1072-81.) Fourth, the blood on Petitioner’s clothing demonstrated his guilt. Photographs introduced at trial showed blood spatters on the walls, floor, carpet, and rug inside the Lisker house. (See RT 295-311, 725-33.) Petitioner had seven small drops and a small number of smears of blood on his clothing. (RT 734-44, 767-68.) Police blood spatter analyst Ronald 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.) 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.) Lin-hart, the blood spatter expert, did not testify to this effect, however. Based on Petitioner’s statement to Monsue 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.) Fifth, Petitioner had ongoing difficulties with his parents and was not living at his parents’ house. (Exh. 86, at 179, 203.) He did not have a key to the house and the family members argued frequently. (Id.; see also RT 950-54.) Robbery and animosity towards his mother were suggested as motives for the crime. Missing was $150 cash Petitioner’s father gave Petitioner’s mother the evening before the murder; Monsue testified the money never was found. (RT 224, 442.) Sixth, Petitioner confessed to a jailhouse informant, Robert Hughes, who repeated Petitioner’s confession at trial. (RT 547-692.) Seventh, 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. (RT 1117-21.) At the close of the prosecution case, the defense successfully moved to dismiss the first degree murder charge. (RT 783-90.) On November 21, 1985, after nearly three days of deliberation following a ten day trial, the jury convicted Petitioner of second degree murder. The court sentenced Petitioner to 16 years-to-life in State prison (CT 255-68, 368-69, 378-79; RT 1221-23, 1237), where Petitioner has remained incarcerated. Petitioner has been in custody since his arrest in 1983. III. PROCEDURAL DEFAULT The AEDPA allows a State to waive the exhaustion requirement and, if the requirement is waived, permits the federal court to adjudicate unexhausted claims. 28 U.S.C. § 2254(b)(3). Respondent declined to waive the exhaustion requirement in connection with Petitioner’s motion to amend his First Amended Petition to add new claims which had arisen from the first evidentiary hearing. (Transcript of November 27, 2006 Court Hearing, at 18:7-9.) Respondent acknowledged that there were new facts, and that the development of new facts in this Court also transformed the previously-adjudicated claims into new claims. (Id., at 17:23-18:2.) Respondent then argued that exhaustion would not be futile; Respondent said that Petitioner could not cite any authority to show that the claims “automatically [would be] rejected] as successive or as barred under timeliness grounds.” (Id., at 18:9-21.) Respondent argued that the State courts were “ready to consider, to analyze these new claims, to look at the newly developed facts, predicate facts in support of the old claims. And they deserve under principles of comity and federalism that opportunity.” (Id., at 18:11-16.) Stating that “[a] lot of evidence has been developed here” (Id., at 26:16), Respondent said that the state courts “will have that opportunity either to issue an order to show case, to hold a hearing, to make a ruling. And it is not beyond the realm of possibility.” (Id., at 26:18-20.) Counsel even told this Court, “We suggest to this Court that this Court may never see this case again. That this case may go to the State courts and it can be resolved there on the merits.” (Id., at 26:9-11.) Respondent insisted that it was “certainly an insult to the State of California to claim that the State courts are going to give short shrift and a blind eye and shrug off claims of false evidence or claims of perjury ...” (Id., at 27:18-21.) When Petitioner returned to State court, however, Respondent did not emphasize that “a lot of evidence ha[d] been developed” here or that Petitioner was raising new claims. Respondent did not urge the State court to “issue an order to show cause” or to “hold a hearing.” Respondent did not urge serious State court consideration of perjury or false evidence, or ask the court in any way to consider Petitioner’s claims on their merits. Instead, Respondent used the opportunity to re-argue many of the matters previously rejected by this Court, and asserted vigorously not that the claims should be considered, but rather that all four of Petitioner’s claims were defaulted. (Traverse, Exh. A, at 98-183.) Respondent took this position despite his earlier argument to this Court that exhaustion was necessary so that the State courts could have the opportunity to review the merits of the claims, and that, in the interests of comity and federalism, the State court deserved that chance. The State court agreed with Respondent’s State court position on default and declined to reach the merits of Petitioner’s claims. (Petitioner’s App. to Vacate Stay, Exh. A.) In the end then, Respondent’s insistence that Petitioner return to State court so that the State court could have the opportunity to review the merits of the claims, coupled with his subsequent entreaties to that court not to review the claims’ merits, resulted in a one-year delay in this Court’s adjudication of Petitioner’s claims. Now the Court must review the claims having the benefit of no greater State court review than had been conducted a year ago when Petitioner sought to add the new claims here. In fact, counsel for Petitioner predicted just such a delay, a delay without purpose. (Transcript of November 27, 2006 Court Hearing, at 37:18-38:6.) Now, also, Respondent asks this Court to deny at least Petitioner’s third and fourth claims as defaulted. (Answer, at 63-67, 87.) Even setting aside Respondent’s previous statements to this Court that Petitioner’s claims, conceded by Respondent to be new claims, would not be given “short shrift” or “shrugged off’ in State court, see Whaley v. Belleque, 520 F.3d 997, 1002 (9th Cir.2008) (the State may not argue inconsistently in State and federal court in ongoing habeas proceedings), this argument is not well taken. The Court already has found that Petitioner satisfied a miscarriage of justice exception to the federal statute of limitations. Lisker v. Knowles, 463 F.Supp.2d 1008; Schlup, 513 U.S. 298, 115 S.Ct. 851. That exception had its origin in procedural default cases, and thus clearly applies to the procedural default argument asserted by Respondent here. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Schlup, 513 U.S. 298, 115 S.Ct. 851; see also House, 547 U.S. at 536-37, 126 S.Ct. 2064 (explaining development of rule). For the reasons articulated in detail by the Court in denying the Motion to Dismiss, any State court default by Petitioner is excused by his gateway actual innocence showing. Lisker v. Knowles, 463 F.Supp.2d 1008; Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Petitioner’s claims must be addressed on their merits. IV. PETITIONER’S CLAIMS FOR RELIEF Petitioner presents four claims in his Second Amended Petition. They are: 1. Petitioner’s right to counsel was violated by the introduction of a confession obtained by a police agent; 2. Petitioner’s right to effective counsel was violated when his trial attorney failed to investigate and present a third-party culpability defense; 3. Petitioner’s due process rights were violated when he was convicted on the basis of false evidence; 4. Petitioner’s due process rights were violated by the cumulative impact of the above three constitutional violations. (Second Amended Petition, at 5-6, att.; see also Traverse.) y. RIGHT TO COUNSEL Petitioner contends that the State violated his right to counsel by introducing a confession obtained by placing him in a jail facility known for housing “jailhouse snitches,” one of whom was Robert Hughes, the inmate who testified that Petitioner confessed the murder to him. (Second Amended Petition, at 5, att.; Traverse, at 48-55.) As Petitioner notes, the Government violates a defendant’s Sixth Amendment right to counsel when it introduces statements which a Government agent deliberately elicited from the indicted defendant outside the presence of defense counsel. See Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). A. The Claim is Not Forfeited Petitioner maintains that he did not actually confess to Hughes but rather that Hughes manufactured a confession using information solicited from Petitioner. (See e.g. Traverse, at 52-53.) Petitioner nevertheless argues that it was a violation of his right to counsel to allow Hughes to testify about the supposed confession. Respondent argues that Petitioner cannot challenge the introduction of his confession while maintaining that he did not confess to Hughes. (Answer, at 27.) In Lee v. Mississippi, 332 U.S. 742, 68 S.Ct. 300, 92 L.Ed. 330 (1948), the Supreme Court held to the contrary: A conviction resulting from such use of a coerced confession, however, is no less void because the accused testified at some point in the proceeding that he had never in fact confessed, voluntarily or involuntarily. Testimony of that nature can hardly legalize a procedure which conflicts with the accepted principles of due process. And since our constitutional system permits a conviction to be sanctioned only if in conformity with those principles, inconsistent testimony as to the confession should not and cannot preclude the accused from raising the due process issue in an appropriate manner. Id., 332 U.S. at 745, 68 S.Ct. 300; see also Beaty v. Schriro, 509 F.3d 994, 997 n. 2 (9th Cir.2007) (“Although Beaty contends he never confessed to Dr. O’Connor, he may still argue that the confession, which was introduced at his trial, was coerced within the meaning of the Fifth Amendment. See Lee v. Mississippi, 332 U.S. 742, 745, 68 S.Ct. 300, 92 L.Ed. 330 (1948)”), cert. denied, — U.S. -, 129 S.Ct. 405, 172 L.Ed.2d 295 (2008). Petitioner has not forfeited this claim. B. The Standard of Review In the usual case, a federal court would assess a State prisoner’s habeas petition pursuant to the AEDPA and could grant relief on a claim only where the State court’s denial of that claim either was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). In this as in so many other ways, however, Petitioner’s case is not the usual one. Given the path of Petitioner’s State court review, this Court must determine, separately for each of Petitioner’s four claims, which State court decision it should review and whether it should conduct such review pursuant to the AEDPA. Petitioner presented his right-to-counsel claim to the California Court of Appeal on direct appeal. In denying relief in 1988, the appellate court found that Petitioner’s housing in an adult jail facility violated State law, but that Hughes was not a police agent when he spoke with Petitioner because Hughes had not yet met with police concerning Petitioner. (Motion to Dismiss, Exh. B, at 81-34.) Therefore, the court determined, Petitioner’s right to counsel was not violated by the introduction of Hughes’ testimony. (Id., at 34.) In his 2003 series of State habeas petitions, Petitioner again argued that the introduction of Hughes’ testimony was a violation of his constitutional right to counsel. (See Motion to Dismiss, Exhs. H, at 112— 29; J, at 218-40.) The Los Angeles County Superior Court denied the petition filed there because Petitioner had been given “more than his day in court” and because “[njothing in the lengthy petition gives [the] court any reason to grant the writ.” (Motion to Dismiss, Exh. I, at 162.) The California Court of Appeal denied without explanation the subsequent habeas petition containing this same claim. (Motion to Dismiss, Exh. K.) The California Supreme Court denied Petitioner’s petition for review in an unexplained one-line denial. (Motion to Dismiss, Exh. M, at 304.) During the 2005 evidentiary hearing in this Court, some evidence was taken regarding Hughes. Then, after Respondent’s Motion to Dismiss was denied, Petitioner obtained a stay from this Court to exhaust claims in State court. When Petitioner returned to the California Supreme Court in 2007 to file his habeas petition there, he included anew his right-to-counsel claim. (See Petitioner’s July 27, 2007 Motion for Release on Bail (“Petitioner’s Bail Motion”), Exh. D, at 95-100.) As noted, Respondent urged the California Supreme Court to deny the petition on procedural grounds; when that court did so, it did not reach the merits of any of the four claims raised therein. (Petitioner’s App. to Vacate Stay, Exh. A.) Given this procedural history, Petitioner argues that, under Killian v. Poole, 282 F.3d 1204 (9th Cir.2002), his first claim should be reviewed de novo; he says that, since 2003 when the State Supreme Court denied the claim on its merits, new supporting facts emerged at the federal evidentiary hearing in 2005. (See Traverse, at 6-7, 47-48; Petitioner’s Bail Motion, Exh. D, at 98.) In Killian, the Ninth Circuit held that where new facts underlying a constitutional claim are discovered in federal habeas proceedings, review of a State court’s denial of relief to the petitioner is de novo — even if an earlier State court denial was on the merits. Id., 282 F.3d at 1208; see also Monroe v. Angelone, 323 F.3d 286, 297-98 (4th Cir.2003) (a federal court should not defer to a State court judgment on a constitutional claim where new evidence was disclosed for the first time in federal court); see also Lambert v. Blodgett, 393 F.3d 943, 968 (9th Cir.2004) (“In sum, our opinions indicate that the decisive factor necessary to trigger AEDPA deference ... is whether the state court adjudicated the defendant’s claims. In each case we ask, did the state court decide the claim on the merits?”). Petitioner contends that his first claim for relief now is supported by new evidence which the California Supreme Court never has reviewed and therefore that this claim never has been reviewed by the State court on its merits. Of course Petitioner also presented this claim to the California Supreme Court in 2007, after the federal evidentiary hearing, and at that time included the new evidence adduced at the federal proceedings. (See Petitioner’s Bail Motion, Exh. D, at 98.) Had the State court denied the 2007 habeas petition on its merits, then the Killian rule would not be relevant and this Court could look to that merits denial as the last reasoned State court opinion concerning claim number one. The California Supreme Court in 2007, however, did not review the merits of this or any other claim presented then; it rejected the entire petition on procedural grounds. Where the California Supreme Court rejects a petitioner’s claim for procedural reasons, review is not conducted pursuant to the AEDPA, but must be conducted under pre-AEDPA standards, as there is no State court decision to which the federal court may defer. Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002). Review of legal determinations and mixed questions of fact and law must be de novo. Id.; accord Tanner v. McDaniel, 493 F.3d 1135, 1139 (9th Cir.), cert. denied, — U.S. -, 128 S.Ct. 722, 169 L.Ed.2d 565 (2007). In such a situation, however, State court factual determinations still are presumed correct and can be rebutted only by clear and convincing evidence. Pirtle, 313 F.3d at 1167-68 (citing Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)). In sum, with respect to claim number one, if in the State proceedings prior to the 2007 proceedings the California Supreme Court was not able to consider the claim as it stands now in this Court, i.e., including pertinent facts adduced at the federal evidentiary hearing, then review of claim number one should be de novo. Killian, 282 F.3d at 1208; Pirtle, 313 F.3d at 1167-68. The question for the Court then becomes: Since its denial by the California Supreme Court in 2003, was new evidence adduced in support of claim number one such that the claim is now a new and different claim from the one decided by the State courts in 2003? The only new evidence suggested by Petitioner is a police interview of another potential informant in which the police suggest surreptitiously that the informant continue to question Petitioner. (Traverse, at 51; Transcript from December 2005 Evidentiary Hearing (“EHT”) II 167-68.) Although this is new evidence, it does not involve Hughes himself or show that Hughes had an ongoing relationship with police in April 1983. It is not by itself enough to transform this claim into one “for which no adjudication on the merits in state court was possible.” Killian, 282 F.3d at 1208. For purposes of determining the standard of this Court’s review, Petitioner’s right to counsel claim is unchanged by the new evidence and the California Supreme Court in 2003 considered the same right to counsel claim now presented to this Court. Therefore, this Court is required to consider deferentially the 2003 State court denial of claim number one under the AEDPA, which, as noted, provides in relevant part: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254. Under the AEDPA, a federal court shall presume that a determination of factual issues made by a State court is correct, and a petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The Supreme Court has elaborated on the deferential standard of review of legal determinations as follows: Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A State court’s decision is an “unreasonable application” of Supreme Court precedent if it is “objectively unreasonable” which “requires the state court decision to be more than incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Thus, “an unreasonable application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); accord Price v. Vincent, 538 U.S. 634, 643, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003) (even where reviewing court might find that error occurred, habeas relief is not warranted where state court denial of claim is “at least reasonable”). The Supreme Court has held, regarding State court factual findings: Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2). Miller-El v. Cockrell 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). C. The Introduction of the Confession At the time of his arrest, Petitioner was a 17 year old juvenile on suicide watch in an adult jail unit, Module 7000 of the Los Angeles County Jail, known as the “Snitch Tank.” (See Augmented Reporter’s Transcript (“ART”) 357-59; Exh. 38.) The cell into which Petitioner was placed had holes in the walls to both adjoining cells; the inmates in the cells on either side spoke to Petitioner through these holes. (See Motion to Dismiss, Exh. B, at 33; Exh. 86, at 314.) On one side was Robert Hughes and on the other side were two inmates, Sherman Wallace and Michael Dowtu, both of whom also reported that Petitioner confessed to them (one of them reported that Petitioner said he stabbed his mother with a fork). (EHT II 163-68; Exh. 86, at 311-21.) Hughes was an experienced informant who had testified in two previous murder trials; he received the benefit of a shortened prison stay in return for testifying against Petitioner. (See RT 571-74, 660-76; ART 372; EHT III 90-91, 97, EHT IV 23-27; Exh. 86, at 685, 712-17.) Hughes testified that he met Petitioner in April 1983, when he ministered to Petitioner through the hole in the wall between their cells. (RT 547-50, 579-80, 646.) According to Hughes, 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.) According to 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 to the jury what he said was Petitioner’s detailed account of the murder. (See RT 551-57.) D. Analysis of Petitioner’s Claim In Massiah, the Supreme Court held that a defendant’s Sixth Amendment right to counsel was violated “when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” Id., 377 U.S. at 206, 84 S.Ct. 1199. In that case, after the defendant was indicted, retained a lawyer, pleaded not guilty, and was released on bail, his co-defendant decided to cooperate with police and agreed to discuss with Massiah their criminal activities while police listened via a radio transmitter placed in the co-defendant’s car. Id., 377 U.S. at 201-03, 84 S.Ct. 1199. The Court held that it was entirely proper to continue an investigation of the suspected criminal activities of the defendant ... even though the defendant had already been indicted.... [But] [defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial. Id., 377 U.S. at 207, 84 S.Ct. 1199. Subsequently, the Supreme Court decided United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), in which it found the Government had violated Henry’s Sixth Amendment right to counsel by “intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel.” Id., 447 U.S. at 274, 100 S.Ct. 2183. After Henry was arrested, arraigned and jailed for bank robbery, federal agents contacted Henry’s cellmate, Nichols, and instructed him to “be alert” to Henry’s statements regarding robbery, but not to initiate any conversation or to question Henry regarding the robbery. Id., 447 U.S. at 265-66, 100 S.Ct. 2183. The Court determined that “under the facts of this case a Government agent ‘deliberately elicited’ incriminating statements from Henry” because: (1) “Nichols was acting under instructions as a paid informant for the Government;” (2) Henry did not know Nichols was anything other than a cellmate; and (3) Henry was in custody when engaged in conversation by Nichols. Id., 447 U.S. at 270,100 S.Ct. 2183. Five years later, the Supreme Court decided Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). There, Moulton and his co-defendant Col-son were indicted and pleaded not guilty to theft charges. Id., 474 U.S. at 162, 106 S.Ct. 477. Colson confessed to police (and also told them Moulton had suggested killing a witness) and accepted a deal wherein no further charges would be filed against him if he cooperated in prosecuting Moulton. Id., 474 U.S. at 162-63, 106 S.Ct. 477. Colson agreed to place a recording device on his phone and to record incoming calls from Moulton. Id., 474 U.S. at 163, 106 S.Ct. 477. When Moulton and Colson planned a meeting to discuss defense strategies, Colson agreed to wear a recording device. Id., 474 U.S. at 164-65, 106 S.Ct. 477. Although the police instructed Col-son not to question Moulton, when the two met, Colson feigned forgetfulness and asked Moulton to recount details of their crimes. Id., 474 U.S. at 164-66, 106 S.Ct. 477. The Court held that the police violated Moulton's Sixth Amendment rights: [T]he Sixth Amendment is not violated whenever — by luck or happenstance— the State obtains incriminating statements from the accused after the right to counsel has attached. However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused’s right to have counsel present in a confrontation between the accused and a state agent. Id., 474 U.S. at 176, 106 S.Ct. 477 (citation omitted). “[P]roof that the State ‘must have known’ that its agent was likely to obtain incriminating statements from the accused in the absence of counsel suffices to establish a Sixth Amendment violation.” Id., 474 U.S. at 176, n. 12, 106 S.Ct. 477. As the Court wrote, “[T]he Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused’s choice to seek ... assistance [of counsel;] ... at the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.” Id., 474 U.S. at 170-71, 106 S.Ct. 477. The main inquiry in Petitioner’s case is whether Robert Hughes was a police agent when he spoke to Petitioner. If not, then Petitioner’s Massiah claim must fail; the Sixth Amendment is violated only when the State or police, through their agent, deliberately elicit incriminating statements, or create a situation likely to induce a defendant to make such statements. Henry, 447 U.S. 264, 100 S.Ct. 2183; and see Randolph v. People of the State of California, 380 F.3d 1133, 1144 (9th Cir. 2004) (holding that it is the creation of a cooperative relationship between the informant and the Government that creates an agency relationship); Creel v. Johnson, 162 F.3d 385, 394 (5th Cir.1998) (“Even if [the informant] had ‘deliberately elicited’ incriminating statements from Creel, his right to counsel was not violated because [the informant] was not an agent of the state.”); United States v. Love, 134 F.3d 595, 604 (4th Cir.1998) (“The behavior of an informant who initiates contact with an indicted defendant — whether because of conscience, curiosity, or even potentially to curry an unpromised future favor from the government — cannot be attributed to the government.”). The trial and appellate courts found that Hughes was not a police agent when he spoke to Petitioner. (ART 379-80; RT 12, 1227; Motion to Dismiss, Exh. B, at 33-34); Williams v. Woodford, 384 F.3d 567, 599 (9th Cir.2004) (whether informant is an agent is a factual finding). The Supreme Court has not clearly identified the specific factors to analyze to determine whether an informant is a government agent pursuant to Massiah; in the Supreme Court cases interpreting Massiah, agency was not the central issue. See Matteo v. Superintendent, 171 F.3d 877, 893 (3d Cir.1999); Creel, 162 F.3d at 393. In Henry, the Supreme Court did find that the police, through their agent, had “deliberately elicited” information from Henry because, among other facts, the informant/agent was paid and acted pursuant to government instructions. Henry, 447 U.S. at 270, 100 S.Ct. 2183. The Ninth Circuit has relied on the absence of either of these two factors to determine that an informant was not a government agent. Brooks v. Kincheloe, 848 F.2d 940, 945 (9th Cir.1988). Other circuit courts have more expressly held that determining the presence or absence of these two factors is a reasonable test for determining agency. See Creel, 162 F.3d at 393 (finding that two-prong agency test of quid pro quo agreement and instructions from police is consonant with Supreme Court authority); Love, 134 F.3d at 604 (agreement with government and payment for information are “crucial indicia” of agency); cf. United States v. Chahia, 544 F.3d 890, 900 (8th Cir.2008) (“[A]n informant becomes a government agent for purposes of [Massiah ] only when the informant is instructed by police to get information about the particular defendant.”) (citation omitted). On the other hand, there need not be an express agreement between police and the informant for the informant to become an agent as “it is the relationship between the informant and the State ... that is the central and determinative issue.” Randolph, 380 F.3d at 1144. The California Court of Appeal made a factual determination that Hughes spoke to Petitioner on his own initiative and that he was not asked by police to question Petitioner. (Motion to Dismiss, Exh. B, at 33.) From this determination, the court found that Hughes was not a police agent in April 1983. {Id., at 34.) On the other hand, police records conflicted about when the police first met with Hughes, although none specifically mentions a meeting as early as April 1983. Hughes testified that he immediately wrote notes of Petitioner’s confession and had the notes during his police interview, but he did not have the notes at trial and could not remember anything about the physical appearance of the notes. (RT 581-82, 631-32, 689-90.) Hughes’ testimony was inconsistent in numerous other respects as well. Hughes previously had testified against at least two other defendants in murder cases and testified that he “always” expected to get something in return for testifying against a defendant. (RT 574, 584-85, 660-62.) Hughes was released early because of Rabichow’s efforts on his behalf. (RT 571-73, 663-76; see also 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, at 311-21.) Finally, in 1990 the Los Angeles County Grand Jury issued a Report on police abuses in the use of informants in the 7000 Module. (See Exh. 38.) The State courts reasonably could have decided that there was sufficient circumstantial evidence to find an agency agreement between Hughes and the police prior to April 1983. See Moulton, 474 U.S. at 176 n. 12, 106 S.Ct. 477 (the Sixth Amendment is violated where government “must have known” that the informant would take affirmative steps to procure incriminating statements). Nevertheless, under the AEDPA, this Court cannot determine the evidence anew to review this factual determination; it must judge only whether the State court’s finding was so far afield as to be objectively unreasonable or, based on new evidence, clearly in error. 28 U.S.C. § 2254(d)(2), (e). Because Petitioner does not present any specific, compelling evidence that Hughes had an agreement with police prior to April 1983, it was neither. Miller-El, 537 U.S. at 340, 123 S.Ct. 1029. Petitioner’s failure to make a sufficient showing of an early relationship between Hughes and the police is fatal to his claim under the AEDPA. 28 U.S.C. § 2254(d). VI. INEFFECTIVE ASSISTANCE OF COUNSEL Petitioner’s second claim is that his trial attorney, Dennis Mulcahy, was ineffective in failing to investigate and present evidence showing that Michael Ryan was responsible for the murder. (Second Amended Petition, at 5, att.; Traverse, at 55-66.) In the Second Amended Petition, Petitioner did not assert that counsel failed to investigate Ryan’s involvement as separate from counsel’s alleged failure to present the evidence already in his possession. (See Second Amended Petition, at 5, att.) Nevertheless, the parties have proceeded as if the failure to investigate allegation were included in the claim. Respondent answered the assertion in the Answer (see Answer, at 34, 37, 40-63), and Petitioner clarified in the Traverse that the claim does include an allegation that counsel failed to investigate Ryan adequately. (Traverse, at 55-66.) From their briefing and argument, it is clear that the parties have understood the failure to investigate allegation to be one of the two parts of the ineffective assistance of counsel claim. (See Respondent’s Nov. 21, 2008 Post Evidentiary Hearing Brief (“Respondent’s 11/21/08 Post-Hearing Brief’); Petitioner’s November 22, 2008 Postr-Hearing Memorandum; Respondent’s July 28, 2008 Motion for Hearing; Petitioner’s August 4, 2008 Opposition to Motion for Hearing; Respondent’s August 11, 2008 Reply to Petitioner’s Opposition to Motion for Hearing.) Before the start of Petitioner’s first trial, on November 15,1984, prosecutor Rabichow moved to suppress any evidence suggesting that Michael Ryan, Petitioner’s former roommate, was involved in the killing. (ART 389.) In opposing the prosecutor’s motion, defense counsel told the court that he had a tape and transcript of an interview Detective Monsue had conducted with Ryan during which Ryan admitted going to the Liskers’ house the day before the murder. (ART 390.) Counsel relayed that Ryan said he saw the victim that day and asked to use her phone and if she had any work for him to do. (Id.) Counsel summarized the rest of the Monsue interview as follows: [Ryan] talks about ... that he had a knife. Detective Monsue[,] and I don’t remember where it was in here, asked him about how he got all the way out of State only having so much money, and it was impossible for him to have left basically with just so much money and eating and where and how he explained the scenario of events in this 41 pages to Detective Monsue. Ryan never admitted being involved. Never admitted having anything to do with this incident. But in reading this one is under the distinct impression that Monsue at least believes it is impossible for Ryan’s story to fit that he had left the next day and how he got to where he got with just the money. He could be placed at the location. He can be placed in the neighborhood of the location. He can be placed having some problems with Dorka Lisker. He can be placed the day before by his own statements. ... He had some problems with Dorka Lisker from obtaining money from her. She apparently became a friend of this Ryan through her son, Bruce. (ART 390-91.) Counsel told the court that he had a “private investigator also contact Ryan, but by the time my private investigator contacted Ryan, he was out of state. He was in San Francisco [sic].” (ART 391.) Finally, counsel referenced an interview of Ryan by two private investigators, noting that in the interview, Ryan did not admit committing the crime. (Id.) Contrary to the State’s assertion here, the trial record does not indicate that counsel provided the court with a copy of the Monsue interview, or any other interview with Ryan. After a recess, the following colloquy occurred: The Court: Okay. As I understand it then, the offer of evidence basically is that this person was formerly a friend of the defendant’s. Was a roommate at some time previously at that house, the victim’s house.- Was there the day before; is that correct? Mr. Mulcahy: That is correct. The Court: I believe you said that he had tried to borrow money from her that day? Mr. Mulcahy: That’s correct. The Court: The day before and then there was some reference to having a disagreement. Was that just that he didn’t get any money or what? Mr. Mulcahy: There has been prior— I can produce evidence that there were prior disagreements between Ryan and Dorka Lisker about doing chores for money. The Court: Okay. Mr. Mulcahy: For whatever value that has. (ART 398.) Based on this showing by the defense, the court granted the prosecutor’s motion and ruled that evidence concerning Ryan was inadmissible. (ART 399.) The court told counsel that if he had other evidence at a later time, “we will get into this again.” (Id.) On October 23, 1985, as the second trial began nearly a year later, prosecutor Rabichow renewed his motion to exclude evidence of Ryan’s involvement. (RT 2.) Mulcahy opposed the motion again and in opposition attempted to introduce a letter written by Petitioner and/or an interview by Monsue of Petitioner in which Petitioner suggested Ryan’s guilt. (RT 2-16.) Counsel argued that the letter should be allowed in as an admission under State law because the prosecution — the party opponent — was attempting to keep it out. (RT 3-4.) The prosecutor correctly countered that under California’s hearsay rules, Petitioner could not introduce his own out-of-court exculpatory statement. (RT 3, 8, 10-11.) Counsel soon agreed, stating that the information in the letter is “probably hearsay granted and it is not relevant.” (RT 10.) After a lunch break, counsel again argued for the admission of Petitioner’s letter, this time as evidence of Petitioner’s state of mind. (RT 15-16.) The court found that the letter was “certainly not admissible.” (RT 16.) Counsel argued in sum that he should be able to introduce evidence that Ryan was in the neighborhood the day before the murder and that the victim would have opened the door for him because she knew him. (RT 10.) The court disagreed and again granted the prosecution motion. (RT 12-13, 16.) A. State Court Review & the Standard of Review in this Court In his 2003 petitions for collateral review, Petitioner argued to the State courts that counsel was constitutionally ineffective in failing to present the jury with evidence suggesting Michael Ryan was responsible for the murder. (See Motion to Dismiss, Exhs. H, at 142-47; J, at 256-63.) In support of the claim, Petitioner presented new evidence, including the transcript of Monsue’s 1983 interview with Ryan, a motel check-in receipt for the day of the murder showing that Ryan checked in under an assumed name and police notes showing he lied to Monsue about his check-in time, a phone record from the Lisker residence showing a call on the day of the murder to a number nearly identical to Ryan’s mother’s phone number, Ryan’s lengthy and violent criminal record, and interviews of Ryan’s parents. (Motion to Dismiss, Exh. H, at 129-40; J, at 240-68.) According to Petitioner, all of these materials either were in counsel’s possession when he opposed the in limine motions or were easily obtainable at that time, and, had they been introduced, would have led to a denial of the in limine motion and a different result at trial. (See id.) The State courts denied relief on this claim without supplying any reasoning beyond the Los Angeles County Superior Court’s finding that in general Petitioner had been given “more than his day in court” and that his claims were speculative. (Motion to Dismiss, Exh. I.) The California Supreme Court denied Petitioner’s 2003 petition for review without opinion, although two justices found that the petition should have been granted. (Motion to Dismiss, Exh. M, at 304.) As with claim number one above, Petitioner argues that this claim should be reviewed de novo under Killian and Pirtle because, since the time that the State supreme court denied it on its merits in 2003, Petitioner discovered new facts in support of the claim and because the later State court denial, in 2007, was based on a procedural ground only. (See Traverse, at 6-7, 47-48.) In fact, much of the evidence Petitioner proffers now in support of this claim was presented to the State courts in 2003. Importantly, however, Petitioner did not present in 2003 the newly-developed shoe print evidence he offers in support of his claim now and which, by itself, could show that someone other than Petitioner was in the house at the time of the attack. (See Traverse, at 59.) In opposing Petitioner’s motion to amend without exhaustion, Respondent seemed to concede that the ineffective assistance of counsel claim is a new one because new facts have “significantly altered that claim and created — and formed it into a new posture.” (Transcript of November 27, 2006 Court Hearing, at 17:24-18:2.) The shoe print evidence is critical to the analysis of claim number two as it negates the prosecution’s theory that only Petitioner could have been the killer; it made a third-party culpability defense far more plausible. Because it is critical to the analysis of the claim, the addition of the shoe print evidence thus renders the present claim one “for which no adjudication on the merits in state court [in 2003] was possible.” Killian, 282 F.3d at 1208. Therefore, the State courts have not addressed the merits of the ineffective assistance of counsel claim now before this Court. Killian, 282 F.3d at 1208 (where new facts are discovered in federal habeas proceedings, review of a State court’s denial is de novo); Pirtle, 313 F.3d at 1167-68 (where the California Supreme Court rejects a petitioner’s claim for procedural reasons, AEDPA does not apply). For these reasons, Petitioner’s ineffective assistance of counsel claim must be reviewed de novo. B. Analysis of Petitioner’s Claim Petitioner claims here that counsel unreasonably failed to present to the trial court the compelling evidence he possessed of Ryan’s involvement and that counsel unreasonably failed to further investigate Ryan’s involvement by examining shoe prints at the Lisker house and autopsy photos and by obtaining the Lisker phone bill and Ryan’s criminal record. (Second Amended Petition, at 5, att.; Traverse, at 55-66.) In order to show a violation of the Sixth Amendment, Petitioner must demonstrate that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner bears the burden of establishing both components. Id. Deficient performance is performance which is objectively unreasonable under prevailing professional norms. Id., 466 U.S. at 687-88, 104 S.Ct. 2052. Under Strickland, counsel’s deficient performance prejudices a petitioner where there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the verdict.” Id. In sum, Petitioner must show: (1) that counsel performed deficiently by failing to argue the import of the evidence he possessed and/or by failing to obtain and present more compelling evidence of Ryan’s involvement; and (2) that Petitioner’s defense was prejudiced thereby, i.e., that, had counsel performed effectively, the court would have allowed the introduction of evidence of Ryan’s guilt which then likely would have led to a different result at trial. More specifically, Petitioner must show that the evidence now proffered would have been admissible under the California law in effect at the time of his trials (1988-85) — the Mendez-Arline rule— which provided that evidence of third-party culpability was admissible “only if it constitutes substantial evidence tending to directly connect that person with the actual commission of the offense.” See People v. Hall, 41 Cal.3d 826, 831-32, 226 Cal. Rptr. 112, 718 P.2d 99 (1986) (explaining the rule and citing People v. Mendez, 193 Cal. 39, 223 P. 65 (1924) and People v. Arline, 13 Cal.App.3d 200, 91 Cal.Rptr. 520 (1970)); see also People v. Green, 27 Cal.3d 1, 22, 164 CaLRptr. 1, 609 P.2d 468 (1980) (citing rule); Perry v. Rushen, 713 F.2d 1447, 1449 (9th Cir.1983) (same). The court applied this test at Petitioner’s trial to exclude evidence of Ryan’s involvement. (See ART 389-99, RT 2-16.) The passage of nearly 25 years since Petitioner’s trial necessarily dims memories. At various times during the second evidentiary hearing, counsel could not remember whether he did or said certain things. This is entirely natural, and not a basis for drawing adverse inferences. The Court also is aware that hindsight has a clarity rarely present in the hurly-burly of ongoing litigation. The Court has taken these things into consideration, and has given counsel the benefit of the doubt; the law in fact requires the Court to indulge presumptions in favor of the constitutionally effective assistance of counsel. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The Court has done so here. The passage of time also means that certain witnesses no longer are available. The Court has taken this fact into account also. However, the parties have not demonstrated that any witness, once but no longer available, would have given evidence which could affect the outcome of Petitioner’s claim. Therefore, although Michael Ryan and Petitioner’s father Robert Lisker both since have died, their presence or absence does not affect the outcome of this claim. 1. Counsel Performed Deficiently When He Failed to Present Evidence Already in His Possession Monsue’s interview with Ryan, combined with evidence contained in the police “murder book” — both of which were in counsel’s possession before trial — contained more evidence implicating Ryan in the killing than Mulcahy suggested in his argument to the trial court. (See ART 390; Transcript from October 2008 Evidentiary Hearing (“2 EHT”) 22-23, 41, 51, 61-63.) Counsel unreasonably ignored the most compelling of this evidence in his argument to the court. For example, he did not tell the court that during the interview with Monsue, Ryan was inconsistent with respect to whether Mrs. Lisker was home when he said he went to the Lisker house on March 9, and the inconsistency appeared to depend on how Monsue framed questions to him, ie., whether Monsue was accusing Ryan of involvement in the murder. (EHT II 146^48; see Exh. 48, at 7 (victim was home), at 12 (victim was not home), at 14 (victim was home).) Counsel also did not tell the court that Ryan left California the day after the murder. (Exh. 48, at 9.) Although in the first trial Mulcahy mentioned that Monsue told Ryan he appeared to have spent more money than he had, counsel did not explain the specifics or the significance of this observation, which was that money was missing from the victim’s purse. (ART 390-91.) In fact, Monsue was correct that Ryan’s explanations did not add up and Monsue pressed Ryan on this subject, at least to some degree. (Exh. 48, at 9-12, 16-17, 27-30.) But counsel did not explain this issue to the trial court in any helpful way (certainly he did not place it in context by noting that Petitioner did not possess any of the stolen money); the court was left with only a vague reference to money. Counsel did not inform the court that Ryan lied about what time he checked into a motel on the day of the murder or that Ryan checked in under an assumed name. Even without being informed that the murder likely occurred around 11:00 that morning, Ryan told Monsue that he checked into a Hollywood motel at 11:00 a.m. on March 10. (Exh. 48, at 8.) Earlier, Ryan told Detective Landgren that he checked into the motel at 10:00 a.m. (Exh. 44.) In fact, included in the “murder book” were the police notes showing that Ryan did not check in until 3:00 p.m. that day. (Exh. 86, at 7.) Counsel also did not tell the court that when Ryan checked into the motel on March 10, he did so under an alias, Mark Smith. (Exhs. 44; 45; 47; 48, at 25.) Ryan told Monsue he used the alias because he was scared after being in an altercation in which he stabbed a “colored guy.” (Exhs. 45; 48, at 8-9, 25.) This explanation was not credible, however, as Ryan already had checked into the motel before he allegedly was involved in the knife fight. (Exhs. 45; 48, at 8-9, 25.) No innocent explanation for Ryan’s lies was offered. Counsel therefore could have offered to the court, from