Blumberg v. Garcia (687 F. Supp. 2d 1074, 2010)

ORDER ADOPTING THE AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHRISTINA A. SNYDER, District Judge.

Pursuant to 28 U.S.C. Section 636(b)(1)(C), the Court has reviewed the Petition, all of the records and files herein and the attached Amended Report and Recommendation of the United States Magistrate Judge, and has made a de novo determination of the Amended Report and Recommendation and Response of the Magistrate Judge to Respondent’s Objections. The Court concurs with and adopts the conclusions of the Magistrate Judge.

IT IS ORDERED that the Petitioner’s claims for habeas relief and cumulative error are granted, and that Petitioner be released from custody, unless new trial proceedings are commenced within 90 days after entry of Judgment.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge’s Amended Report and Recommendation, Response of the Magistrate Judge to Respondent’s Objections and the Judgment herein by the United States mail on petitioner, counsel for petitioner and respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

STEPHEN J. HILLMAN, United States Magistrate Judge.

This amended report and recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and General Order No. 05-07 of the United States District Court for the Central District of California. For the reasons discussed below, the magistrate judge recommends that the petition be granted.

PROCEDURAL BACKGROUND

Petitioner, a prisoner in the custody of the California Department of Corrections, represented by counsel, challenges his conviction in Los Angeles Superior Court (Case No. MA015042).

On June 9, 1998, Petitioner was convicted by a jury of conspiracy to commit murder, attempted murder, and assault with a semiautomatic firearm in violation of California Penal Code (“PC”) §§ 182(a) (1), 664/187(a) and 245(b), respectively. [Clerk’s Transcript (“CT”) at 259-62; Reporter’s Transcript (“RT”) at 1704-12.] The jury also found “true” the allegations that the attempted murder and assault were committed for the benefit of a criminal street gang and that a principal was armed with a firearm during the commission of the attempted murder, in violation of PC §§ 186.22(b)(1) and 12022(a)(1). [CT at 259-62; RT at 1704-12.] On September 9, 1998, Petitioner was sentenced to an aggregate term of twenty-six years to life in state prison. [CT at 336-38, 352; RT at 1760-66.]

Petitioner appealed his conviction to the California Court of Appeal. [CT at 353; Lodgment (“Lodg.”) Nos. 3-6.] In an unpublished opinion filed on February 3, 2000, and modified March 2, 2000, the California Court of Appeal stayed a one-year portion of the sentence, ordered the abstract of judgment modified in certain respects, but otherwise affirmed the judgment in full. [Lodg. No. 7.] On May 17, 2000, the California Supreme Court denied review without comment or citation to authority. [Lodg. Nos. 8, 9.]

Petitioner sought collateral review in the Los Angeles Superior Court, which denied relief in a reasoned order filed July 31, 2002. [Pet., Ex. R; Lodg. Nos. 10, 11.] Petitioner pursued collateral review in the California Court of Appeal, which denied relief in an unpublished decision on September 15, 2003. [Pet., Ex. S; Lodg. Nos. 12, 14.] Petitioner’s petition for habeas relief in the California Supreme Court was summarily denied on September 22, 2004. [Pet., Ex. T; Lodg. Nos. 15,16.]

On September 29, 2004, Petitioner, represented by counsel, filed the present habeas corpus petition. Respondent’s answer was filed on April 5, 2005; Petitioner’s traverse was filed on May 31, 2005.

On December 19, 2005, Magistrate Judge McMahon filed a Report and Recommendation recommending that the Petition be denied in its entirety with prejudice. Upon the filing of Petitioner’s objections (“Obj.”), the matter was reassigned to the undersigned Magistrate Judge for all further proceedings. On February 26, 2006, the court ordered respondent to file a reply to the objections. On June 9, 2006, respondent filed his reply (“Reply”).

After independent review of the pleadings and the record, in an Order dated January 26, 2007 (“Order Re: Further Proceedings”), the undersigned Magistrate Judge concluded that the initial Report and Recommendation did not fully address Petitioner’s claims, and that Petitioner had alleged facts, which if true, entitled him to relief, and that an evidentiary hearing may be warranted. The court directed Respondent to file a Supplemental Answer.

On April 30, 2007, Respondent filed a Supplemental Answer (“Supp. Ans.”). Pursuant to a stipulation of the parties, on July 10, 2007, the court ordered discovery. On December 6, 2007, the court determined that an evidentiary hearing was required. Respondent filed a “Partial Supplemental Answer” on April 10, 2008. After several status conferences regarding discovery and scheduling, both parties filed pre-evidentiary hearing briefs on May 28, 2008. The evidentiary hearing was held on June 3, 2008.

On June 12, 2008, Petitioner moved to expand the record (“MER”). Respondent filed an opposition to the motion (“Opp. MER”) on July 10, 2008; Petitioner filed a reply (“Rep. MER”) on July 18, 2008. On September 15, 2008, the court issued an order granting the motion to expand the record.

Petitioner filed a post-evidentiary hearing brief (“Pet. PEHB”) on September 15, 2008. Respondent filed a post-evidentiary hearing brief (“Resp. PEHB”) on October 30, 2008. Petitioner filed a reply (“Rep. PEHB”) on December 5, 2008.

The matter has been submitted and is ready for decision.

PETITIONER’S CLAIMS FOR RELIEF

Petitioner alleges the following grounds for relief:

1. The key prosecution witnesses — Los Angeles County Deputy Sheriff Brad Foss, Los Angeles Police Officer Brian Hewitt, and Jose Reyes— provided false testimony at trial [Claim One: Pet. at 13-37];

2. The prosecution violated Brady, presented false evidence, and impermissibly vouched for prosecution witnesses [Claim Two: Pet. at 38-43]; and

3. The errors in this case, both individually and cumulatively, rendered petitioner’s trial fundamentally unfair [Claim Five: Pet. at 50-52.]

FACTUAL SUMMARY

A. Trial

1. Case-in-chief

At about 3:00 p.m. on October 29, 1997, Petitioner and his older half — brother, Michael Blumberg (“Michael”), were driving on “J-8” in Lancaster, California. Michael, who was sitting in the front passenger seat, yelled out to a pedestrian, Ramon Zuniga (“Zuniga”). Zuniga was wearing a baseball cap with the letters “BLC” on the front and “Maldito” on the back. “BLC” is the acronym for the “Barrio Lorenzo Cardenas” gang, of which Zuniga was a member; “Maldito” is Zuniga’s gang name (moniker). Zuniga had not seen Petitioner or Michael before that day. As Petitioner drove past Zuniga, Michael yelled out to Zuniga, asking him if he “wanted shit.” Someone in the car also yelled out “it’s all about Temple Street.” Zuniga believed that he was being challenged and threatened. He responded that he did not “want no problems.” [RT 104-09, 111.]

Petitioner continued driving, and turned right on Fine Street, the first street he came to after the exchange. Shortly after, Petitioner drove by Zuniga again. Petitioner stopped at a stop sign after passing Zuniga. When Petitioner stopped, Michael got out of the car. Petitioner turned right at the corner and drove away. Michael approached Zuniga on foot, stating “it’s about Temple Street” and “fuck BLC,” and shot at Zuniga. Zuniga did not see a gun in Michael’s hand before he was shot. [RT at 111, 115-19, 185.]. Zuniga was shot several times; including in the back, stomach, elbow, and twice in the chest. [RT at 195.] He survived his injuries, and later identified Petitioner as the driver at a line-up and at trial. [RT at 105, 572.]

Michael ran from the scene and through a gate onto Ruthron Street, a cul-de-sac bordering J-8. Petitioner had driven into the cul-de-sac, and was attempting to turn around. After hearing gunshots, Dena Chitty and Fred Roper — each of whom resided on Ruthron — saw an individual run to the car and get into the passenger side, after which the car drove off. Roper noted the license plate number on Petitioner’s car, and provided it to an officer who responded to the scene. [RT 121, 161-64, 203-07, 209-10.]

Officers tracked the license plate number provided by Roper to Petitioner’s mother, Graciela Moreno’s, residence in Palmdale. Petitioner was not present when the officers arrived. Ms. Moreno consented to a search of the residence, during which officers recovered several “gang related” items from Petitioner’s bedroom. A car with the same license plate number noted by Mr. Roper was found in the garage of the house and impounded. [RT at 384-86; 418-29,431-33.] According to Ms. Moreno, Petitioner and Michael (who resided elsewhere) arrived at the house late that afternoon, and left about two hours later in her car. [RT at 536-37.] Petitioner was arrested later that night. At the time of his arrest, Petitioner had the letter’s “TST” (an abbreviation for “Temple Street”) tattooed on his forearm, and the words “Temple Street” and “Whisper” — Petitioner’s gang moniker — tattooed on his back. Petitioner was wearing large, baggy clothing typical of gang attire, a necklace with the letter “W” on it, and a black belt with the letters “WS” (an abbreviation for “Westside Temple Street”) on the buckle. [RT at 407-08, 430, 432, 568.]

Jose Reyes (“Reyes”), a purportedly former BLC gang member, surfaced mid-trial as a prosecution witness. Reyes testified that on October 18, 1997 (eleven days before the Zuniga shooting), he and other BLC members attended a party at which Petitioner, Michael, and other Temple Street gang-members were present and at which a fight broke out between members of the two gangs. [RT at 318-28, 336-38, 341-48.] According to Reyes, there were no problems or any rivalry between the two gangs before that party. [RT at 319, 328, 375.]

Reyes testified that after leaving the party, he and other BLC members were shot at while congregating at a park. [RT at 348-58.] Reyes identified Petitioner as the shooter. Reyes testified that he thought the firearm Petitioner used was “at least a .22,” that Petitioner was with his brother at the time, and that the shooting occurred on the heels of a verbal exchange between Reyes and his companions and Petitioner and his companions of their respective gang affiliations. [RT at 357-61.] Reyes further testified that after the shooting, he quit “gang banging,” that he no longer associated with BLC members, and that he contacted Foss because he wanted his name out of the sheriffs gang files. [RT at 317-18, 333, 366.] Reyes denied that he was made any promises for his testimony and asserted that he told the truth about the October 18th park shooting incident. [RT at 333-34, 365, 377.]

Reyes admitted at trial that he was then on juvenile probation for possession of a dangerous weapon, that he told Foss that he was trying to get his nephew Michael Reyes, aka “Delinquent” (hereafter “Delinquent”) — who was then in custody — out of the BLC gang, and that he was loyal to (i.e. would “back up”) all BLC members— including the victim — while he was active in the gang. [RT at 332-34, 370-73.] Reyes explained that it was important for him to contact Foss because someone else was using his gang moniker (name), and he did not want to be blamed for someone else’s conduct. He admitted, however, that he waited several months after he purportedly became “inactive” in BLC before contacting Foss, and that he had known that another person had been using his moniker “behind his back” for at least two years. [RT at 367-69.]

Foss testified as the prosecution’s gang expert, that in his opinion, Petitioner was an active member of Temple Street, that a rivalry existed between Temple Street and BLC, and that the shooting of Zuniga was gang-related and “payback” for the incident described by Reyes.

Foss admitted that Reyes was the only person who claimed to have witnessed Petitioner commit the shooting at the park; that he had not attempted to verify Reyes’ account; and that although he had had several contacts with Reyes in the preceding months (before and after the charged offenses), the first time Reyes said anything to him about the park shooting was on May 6, 1998 (midtrial). [RT at 756-57.] Foss testified that before Reyes contacted him he had received information from three or four other BLC gang members or informants about an “incident” and that there were “problems” involving Temple Street members that generally corroborated Reyes’ account [RT at 442, 444, 593, 772.] However, Foss admitted that these “disclosures” were general, he did not document them, and he could not recall who he had spoken to. [RT at 578, 593-95.] Foss later testified that he had noted information received from at least one person, perhaps two, other than Reyes who identified Petitioner as the shooter, but that the person he was referring to was not a witness to the shooting, and that the information was “second hand.” He believed this conversation occurred mid to late October, but his notes were not dated. [RT at 761-62, 769.] Foss also admitted that he also had numerous contacts with Delinquent in the months before and after the charged offenses. [RT at 589-90, 757, 759-61.] Foss further admitted that none of the field interview cards generated by local deputy sheriffs documenting “stops” of Petitioner indicated that he was in the company of known Temple Street gang members, other than his brother. [RT at 612.]

2. Defense case

Clayton Hollopeter, testified for the defense as an expert in gang identification, culture, practices and intervention in Los Angeles County. [See, e.g., RT at 820-52; 869-910; 1009-1011.] Hollopeter opined that the graffiti depicted in Petitioner’s bedroom was not gang related, but a form of tagging called “bombing” — i.e., graffiti that is multi-colored and includes cartoon figures; in comparison, the graffiti photographed by Foss in the abandoned house was gang-related. [RT at 881-86.] Hollopeter testified that the roster of names found in Petitioner’s room was probably written by a gang member, and could represent everyone known to the writer or who the writer had heard of who was or had been in the gang; admittedly helpful information to law enforcement. [RT at 887-89.] Hollopeter testified that he knew two of the individuals named on the “hard candy list;” both of whom had left “gang life” years before. This suggested to him that the list was not contemporary. [RT at 860-61.]

Juanita Reyes, Jose Reyes’ sister-in-law and Delinquent’s mother, testified that Reyes’ reputation within the family for truth and honesty is “not real good” and that “he lies a lot.” [RT at 1157.]

Sarah La Face, at whose house the party (preceding the park shooting incident) was held, contradicted much of Jose Reyes’ testimony regarding Petitioner’s presence and conduct at the party, as well as the conduct of other attendees. [RT at 1168-74, 1180-88, 1191-92.] Petitioner’s mother, Ms. Moreno, and Petitioner’s father, Arthur Blumberg, testified that Petitioner’s criminal record consisted only of one arrest while in Michael’s company, two years prior in 1995, for which Michael, but not Petitioner, served a term in juvenile custody. [RT at 1250, 1269-70, 1320.]

Petitioner testified in his own defense. Michael arrived at Petitioner’s house in Palmdale at about 1:00 p.m. They left sometime later — with Petitioner driving— and drove to Lancaster. After stopping at Antelope Valley College, Petitioner drove and turned onto J-8, heading east, toward 32nd Street East and Lancaster School, hoping to see a couple of girls he knew. [RT at 1334-37.] Zuniga was walking down the street. Michael thought he recognized Zuniga, and asked Petitioner to slow down. Michael said to Zuniga: “what’s up now, punk? Do you remember me?” Zuniga replied “No, I don’t know you.” Michael then said “this is Temple Street. Do you got shit?” Zuniga responded “I never heard of you.” Michael stated: “that’s what I thought. You are nothing but a bitch.” Zuniga said “All right. I’ll remember that.” Michael then got mad, saying “what, what?” Petitioner did not say anything to Zuniga. [RT at 1337-39.]

Two cars behind Petitioner started honking, so he made a quick right hand turn onto the first street, 30th Street. He turned around, drove back to and turned onto J-8, continuing on J-8 as before toward the school. Zuniga was still walking down the street. As Petitioner drove past Zuniga, his brother insisted that he stop the car, without saying why. Petitioner refused, told his brother to “forget it” and kept driving. As Petitioner stopped to make a right turn at 32nd Street, Michael started to get out of the car. Michael saw Zuniga walking near a gate leading to another street. Michael told Petitioner to meet him on that street, stating “don’t leave me.” Michael got out of the car and ran toward Zuniga. Petitioner thought that there would be a confrontation, maybe a fight, but did not plan or discuss that with Michael. He did not see a gun or know that Michael was armed. [RT at 1339-43,1353.]

Petitioner went looking for Michael because he did not want to leave him. He turned right onto Ruthron, and attempted a quick turn around when he heard gunshots. He did not know who was shooting at whom. As he was turning around, Michael ran up and got into the car, saying “get out of here. Let’s get out of here.” Petitioner drove away. Petitioner asked what happened, and Michael said he shot the guy. [RT at 1344, 1348-50.] Petitioner drove to their father’s house, where they stayed a couple of hours before driving to Petitioner’s mother’s house. Petitioner parked his car. Sometime later he and Michael left in Petitioner’s mother’s car. At Michael’s request, Petitioner drove to and dropped Michael off at a bus stop in Lancaster. That was the last time Petitioner saw Michael. [RT at 1350-52.] Petitioner returned to his mother’s house after learning from her that the police were there, and was arrested. [RT at 1364-65.]

Petitioner was “jumped into” the Temple Street gang in 1994, and got his tattoos that year and in 1995. Michael is also a member, but had different friends. [RT at 1353-55.] Petitioner “hung out” with the gang in Los Angeles until mid-1995. After a friend was killed in a drive-by shooting and because the neighborhood became too dangerous, Petitioner moved away. [RT at 1356-57.] Petitioner testified that he was still a member of Temple Street because he had not been “jumped out.” Being “jumped out” is dangerous, so he moved away rather than risk getting hurt. Petitioner denied being active in “gang-banging” activities and that the items discussed by Foss represented otherwise. Petitioner stated that he “wrapped up” high school and was taking college classes when he was arrested. [RT at 1357-63.] Petitioner denied that he deliberately attempted to alter his appearance for the line-up. He admitted that he lied to police officers after his arrest — telling them he wasn’t there — because he knew his brother was in trouble and because his father had made his life difficult in the past when he had not protected Michael. Petitioner admitted that he helped his brother get away, but denied that his doing so had anything to do with the gang. [RT at 1369-70,1410.]

Petitioner admitted that he attended the party at Ms. La Face’s house, stating that he was back and forth between the party and his girlfriend, Desiree’s house. Petitioner admitted that he was standing in the backyard with Michael and “Droopy,” who he had met once or twice before, but denied that the three of them were passing anything back and forth between them. Petitioner did not flash gang signs at anybody, was not involved in or see the fights that broke out, and did not shoot at a truck after the party. He believed that Reyes may have been with a group of people passing by Desiree’s house that he was introduced to some time prior, but that he had never had a conversation with Reyes and did not otherwise know him. [RT at 1332-34.]

Petitioner admitted on direct examination that in 1995, he, Michael and another individual were stopped while driving late at night and arrested. Petitioner testified that he did not see a gun in the car. [RT at 1371.] Petitioner testified on cross-examination that he was told after the arrest that firearms were found in the car. Petitioner admitted that at the time he and Michael were both active gang members; Petitioner was giving the third person, who Petitioner did not know, a ride home. Petitioner repeated that he did not see any guns in the car, that he did not know whether he was driving in rival gang territory and that the car did not have any hidden compartment. [RT at 1410-12.] On re-direct, Petitioner explained that he was the last driver where they were hanging around, and that the individual needed a ride home. [RT at 1418.]

3. Rebuttal

Los Angeles Police Officer Brad Hewitt (“Hewitt”) testified that while assigned to the Rampart CRASH Division in 1995 he arrested Petitioner, Michael and another Temple Street gang member after he observed the three surreptitiously driving (Petitioner at the wheel) late at night in rival gang territory and saw the front passenger pass a handgun to the right rear passenger (Michael). [RT at 1429-32.] Hewitt further testified that he “recovered” two automatic handguns from a hidden compartment in the armrest area of the right rear passenger seat, and that in his expert opinion, Petitioner and his companions were in a rival gang area to commit an assault with a deadly weapon. [RT at 1432-35, 1438.] On redirect examination, Hewitt again testified that he saw the individual sitting next to Petitioner pass a gun to the rear passenger. [RT at 1438.]

4. Closing Argument

At the outset of closing argument, the prosecutor stated to the jury that the case was about “three things:”

It’s about knowledge. It’s about intent and its about credibility.

What did the defendant know and when did he know it?

Intent. What did the defendant intend that day, and what did his brother intend?

And, finally, credibility .... [¶] ... whether Detective Foss was telling the truth .... whether Officer Hewitt from L.A.P.D. was telling the truth .... and whether or not [Petitioner] was telling the truth[.]”

[RT at 1460.] Turning first to the charged conspiracy to commit murder, the prosecutor argued that the offense required proof of an agreement to commit murder, and specific intent by each person to kill unlawfully. The prosecutor noted the lack of evidence of an express agreement, stating:

“But you have heard evidence of other acts by this defendant. Your have heard evidence of other acts by this defendant and his particular brother. That is evidence, ladies and gentlemen, of what his intent was on that particular day.

[RT at 1461.] The prosecutor continued that the unlawful agreement could be inferred from the circumstantial evidence, i.e., Petitioner and his brother’s conduct [RT at 1461]; then stated:

“Let’s talk about another way. Evidence of other crimes.

The other crimes are:

The defendant, 11 days earlier ... when he was the shooter. That is the other crime in this case....

What, about three years ago, when this defendant was the driver in a vehicle in which other Temple Street gang members were there, and they had guns....

But evidence of crimes, ladies and gentlemen, will get you to the agreement and the intent that this defendant shared with his brother that day.

Evidence of other crimes ... may ... show that there was a method, plan or scheme. Evidence of other crimes can be used to show the intent. What ware we talking about? An agreement and intent.

Evidence of other crimes can be used to show motive. The reason they wanted to kill Ramon Zuniga that day. They were having a fight with BLC. Ramon Zuniga is a BLC member. They want to kill him. That’s what evidence of other crimes will get you to.

Evidence of other crimes ... can be used to show knowledge.

And ... evidence of other crimes can be used to show the existence of a conspiracy.

So those are the two ways that we get to the agreement and to the intent.

[RT 1465-66.] Continuing, the prosecutor repeated that inferences raised by Petitioner’s actions were sufficient to establish the requisite agreement and intent [RT at 1467-68], but that the jury could reach the same conclusion based on the other acts evidence:

This defendant is a shooter, eleven days earlier, against rival BLC gang members. This defendant was, not his brother. His brother’s turn was eleven days later. But on October 18th, after the confrontation at the birthday party, it was his time.

Shooter, eleven days earlier. The same gang was involved. The same rival gang, BLC. The same weapon, or the same type of weapon was possibly involved.

You heard Jose Reyes. He’s the one who testified about that particular incident.

But Jose Reyes told you something to the effect, it was a small caliber weapon. I believe he said like a .22 or .25. And we know that the gun that Ramon Zuniga was shot with was a .22 caliber. So evidence of other crimes.... The same gang, same rival gang, same weapon, same M.O.

.... M.O. is modis operandi. How this defendant does things. How this defendant and his brother do things. How members of Temple Street do things. Same M.O. eleven days earlier. The only difference being this defendant was the shooter. It was his turn that day, and there was another driver. Because his brother got out of the car with him.

That’s how you get to agreement and intent. That’s how you get to what is going on in this defendant’s mind when he was driving that car on October 29, 1997.

Is this the only way to get to the agreement and intent? Not at all. The defendant was previously arrested under similar circumstances.

... He didn’t shoot anybody in that case. He didn’t have a chance to.

What we know is this defendant, once again, had control of a vehicle. Different car that night. They were in rival gang territory. That’s what Officer Hewitt told you. They had guns in the car. Not one gun, but two guns. The defendant was with his brother, a Temple Street gang member, and was with another Temple Street gang member, and on that particular night a gang war was going on.

Does that sound familiar? Maybe if Detective Foss had been riding around on October 29, 1997, had a reason to stop the defendant. We would almost have the exact scenario and he wouldn’t have had a chance to shoot anybody that day.

You heard what Officer Hewitt said.... His [expert] opinion was that that night ... they were in that area to commit an assault with a deadly weapon on a rival gang member.

... Three ways to get to intent and agreement.

[RT at 1469-71.] The prosecutor emphasized that although the jury had to find that there was an agreement and intent,

... what is important is that all of you don’t have to agree on how to get there....

... one of you may say, T think because of the previous incident in 1995’ ... they were there to kill Ramon Zuniga.... Two of you can agree that, ‘well, based on what happened in April '95, that its clear to me beyond a reasonable doubt that this defendant had the intent that day, or shared that intent that his brother had to kill Ramon Zuniga. It’s clear to me that this defendant had an agreement with his brother that this is what we are going to do. This is where I’ll pick you up.’ One or two of you can agree that, ‘for me, it’s April of 95. All right. You know, three or four others of you, or six or seven, may say “well, you know, for me, its that previous incident eleven days earlier, you know, where he was the shooter, where he was out trying to kill members of BLC himself personally.’

So, it doesn’t matter how you get to agreement and intent. You have three ways to get there, and you don’t all have to agree.

[RT at 1471-72.]

Turning to the credibility of the witnesses, the prosecutor argued that Zuniga was credible and had no reason to lie, urging the jury to look beyond discrepancies between Zuniga’s testimony and prior statements he made to the police contemporaneous to the shooting, his gang affiliation, and any bias he had against Petitioner. [RT at 1473-75.] As to Jose Reyes, “the witness who puts this defendant as the shooter at that previous incident eleven days earlier,” the prosecutor similarly argued that Reyes had “no reason to lie.” [RT at 1475-76]; that “there has been nothing showing that he had a reason to lie. That he had a motive. That he had a bias____[¶] Jose Reyes is or was a gang member. Was a gang member. I think is probably more accurate. That is what his testimony was.” [RT at 1477.] The prosecutor contended that the fact that Reyes was considered to be dishonest by family members was hardly surprising in context, and that there was no evidence that Reyes received anything in exchange for his testimony. [RT at 1476-78.]

The prosecutor argued that to find Petitioner not guilty as charged, the jury would have to believe not only that Zuniga and Reyes lied, but that the law enforcement witnesses did as well:

“You have to find that Detective Foss lied or was mistaken about a number of facts in this case. About a list of facts too long to list about this defendant being a gang member ... that with his years of training and experience, Detective Foss was wrong about that or came in here and intentionally lied to you about those things. You’ve got to find that Officer Hewitt drove 80 miles from Los Angéles to come here and lie to you. Or to be mistaken. All the tax dollars we pay Detective Foss and Officer Hewitt.

[RT at 1479-80.]

After discounting the defense witnesses (with the notable exception of a deputy sheriff) as either unbelievable or biased [RT at 1482-85], the prosecutor turned to Petitioner, arguing that although Petitioner admitted that he lied to the police, he then lied to the jury as to his reasons for doing so. [RT at 1486-89.] The prosecutor further argued that Petitioner lied about the contents of the photograph depicting him throwing gang signs; that it could be inferred from the evidence that Petitioner purposefully failed to ready himself for the line-up; that Petitioner changed his story after doing some research and after Zuniga identified him at the line-up; and that the defense’s efforts to depict Petitioner as a student who had turned his life around — along with his appearance and demeanor at trial — was orchestrated to avoid conviction other than as an accessory after the fact. [RT at 1490-94.]

The prosecutor then argued:

The defendant, ladies and gentlemen, lied to you about the previous incident in this case. I am not going to go back over what Jose Reyes said, except to say that one of the things that [Deputy] Foss testified to you about, he didn’t say who did the shooting. I don’t know if he knows. That’s not an issue of whether he knows who did the shooting. But he told you when he testified as an expert that he was aware of a shooting that had taken place between Temple Street and BLC. His testimony, [Deputy] Foss’ corroborates Jose Reyes.

Jose Reyes comes in and gives a little bit more flavor to that shooting and said,’Yeah, there was a shooting, and this guy, [Petitioner], was the shooter.’ But, more importantly, the defendant lied to you about what took place in Los Angeles in April of '95. He said, you know, T was told there was some guns in the car. I didn’t know. I didn’t know.’

What did Officer Hewitt tell you? It was a situation where Officer Hewitt is either lying — he either drove 80 miles from Los Angeles to lie to you, or he’s just so off base in his opinion as to really be, you know, I’ll say it, worthless as a police officer.

But he said, ‘I watched the passenger in a Toyota Tercel,’ all right, not a Suburban, not a huge Cadillac, not a big Lincoln Town Car, but a passenger in a Toyota Tercel. We know how big — you know, it’s a small, compact car. T saw ... the passenger in the front seat pass a gun from the front seat to the back seat.’

That’s what he saw from another police car. I mean, from another car. He could see a gun in the car.

But this defendant will come into this courtroom, ladies and gentlemen, and tell you, T was told there was a gun in the car. I didn’t know nothing about that, Officer Hewitt.’

There was a hidden compartment in that car. The defendant’s car.

[Petitioner] said, ladies and gentlemen, T promise you I don’t know anything about a hidden compartment being in that car.’

He lied to you, ladies and gentlemen. He lied to you.

The judge will instruct you, ladies and gentlemen, that if the witness is willfully false ... in one portion or aspect of his testimony, he is to be disbelieved or distrusted in other aspects of his testimony.

[RT at 1495-96.] The prosecutor accordingly urged the jury to “throw it all out” and conclude that Petitioner was lying about everything, to reject any lesser or related offenses, and to find that Petitioner agreed with and shared the same intent as his brother and therefore was guilty of the charged conspiracy and attempted murder. [RT at 1497-98,1501.]

Defense counsel argued that there was no dispute that Petitioner was guilty of being an accessory after the fact, or that Michael Blumberg committed an assault with a deadly weapon. [RT at 1520-21, 24-26.] Defense counsel argued that Petitioner’s liability for the assault and/or attempted murder was dependent on proof that he aided and abetted, or was an accomplice, to Michael Blumberg. Liability on these theories, in turn, required proof that Petitioner knew of his brother’s unlawful purpose and intended to assist him in accomplishing it. [RT at 1514-17,1520-23.] Similarly, the charged conspiracy required proof of an agreement with the specific intent to commit murder. [RT at 1517-20.]

Turning to the evidence, defense counsel agreed that the conversation preceding the shooting was key, arguing not that Zuniga lied, but that the inconsistencies in his statements overtime regarding the conversation, as well as less significant details, rendered the reliability of his testimony suspect and insufficient to meet the beyond a reasonable doubt standard. [RT 1527-35.] With respect to the other crimes evidence to show Petitioner’s intent and knowledge, defense counsel dismissed Officer Hewitt’s testimony regarding Petitioner’s 1995 arrest, as it did not result in any charges. [RT at 1535-37.] Defense counsel argued that Jose Reyes’ testimony should also be dismissed, noting that the timing of his revelation to Foss about the park shooting was particularly suspect, that Reyes admitted that he wanted to help his cousin Delinquent (who happened to be released from custody within days of Reyes’ testimony), that he is loyal to BLC (of which Zuniga is a member), that he was the only person to identify Petitioner as the shooter, that Reyes had a reputation as a liar among his family members, and that Sarah La Face contradicted Reyes’s account of Petitioner’s conduct at her party. [RT at 1537-42.]

Defense counsel countered that neither the hard candy list — which, counsel argued, at best, supports what had already been admitted, i.e., that Petitioner was a gang member — nor the circumstances surrounding the line-up shed any light on Petitioner’s state of mind and knowledge at the time of the offenses. [RT at 1542-48.] Further, defense counsel argued that the evidence of Petitioner’s gang membership was not indicative of active criminal gang activity from which the requisite intent could be inferred, and that a contrary inference could be raised based on Petitioner’s continuing, albeit imperfect, efforts to continue his education. [RT at 1549-54.] Defense counsel acknowledged that the gang experts — i.e. Foss and Hollopeter — had different credentials and approached the subject of gang membership and activity from different perspectives and urged the jury to make its own conclusions. [RT at 1557.] Defense counsel argued that Petitioner’s admission that he lied to Foss was indicative of an admission of wrongdoing and desire to proceed truthfully, that the jury should reject outright the notion that the defense was fabricated, and that Petitioner’s explanation why he was scared to tell the truth at first should not be discounted based on speculation as to what and when his parents may have learned about the crime. [RT at 1555-57.]

During rebuttal, the prosecutor argued that while Zuniga gave inconsistent statements, he always maintained that both individuals in the car verbally challenged him. [RT at 1563.] The prosecutor discounted Hollopeter’s testimony [RT at 1568-70], and reiterated that Petitioner is a liar; otherwise, Foss and Jose Reyes must have perjured themselves. [RT at 1564-68; 1571-72.] Petitioner’s 1995 arrest was evidence “at [the prosecution’s] disposal” to use to “talk about what was going on in the defendant’s mind on [the day of the charged shooting]” and “to prove a case to you.” [RT at 1576.] The prosecutor argued that Petitioner lied about that incident, and that Officer Hewitt “drove 80 miles from L.A.” to give the jury the “entire picture” in response to Petitioner’s testimony; to “talk about what really went on that night.” [RT at 1577-78.] The prosecutor chided the defense’s claim that Reyes was “backing up” Zuniga or was otherwise biased because of their joint affiliation with BLC, as well as the suggestion that Reyes expected a benefit as a result of his testimony. [RT at 1572, 1578.]

In conclusion, the prosecutor argued that to find Petitioner credible, the jury would have to find that most — if not all— of the prosecution witnesses were not credible, which the prosecutor continued “is not reasonable[:]”

... I submit to you again. This case is about three things. This case is about knowledge. This case [is] about intent. This case is about credibility. This case is about what this defendant knew and when.

And I submit to you, ladies and gentlemen, based upon all [the] testimony. Based upon all the things that you heard about in '95. Based on what you heard about [the park shooting incident]. That this defendant and his brother shared the same intent that day, October 29, 1997: That they entered into an agreement to kill a rival gang member because that is what gang members do when they are at war; that there were several overt acts committed in furtherance of that conspiracy; and that the end result of that was that this defendant’s brother got out of the vehicle that day and shot Ramon Zuniga six times in the chest and stomach area. And that based on that evidence, ladies and gentlemen, this defendant is guilty of conspiracy to commit murder, and that this defendant is guilty of attempted, premeditated, willful and deliberate murder.

[RT at 1582.]

At the end of the first day of jury deliberations, the jury requested a read back of the testimony of both Ramon Zuniga and Jose Reyes. [CT at 145-46.] Deliberations continued two days later after the requested testimony was read back. [CT at 149.]

B. State Court Post Conviction Proceedings

Before conclusion of direct review, Petitioner discovered through media and other sources that Officer Hewitt had been terminated from the LAPD in March, 1999, for excessive force and other charges for which he was under an internal investigation at the time of his testimony at Petitioner’s trial. [Lodg. No. 15, Ex. C; Pet., Ex. CJ Petitioner’s appellate counsel had also heard from a Los Angeles Deputy City Attorney that Hewitt had filed a false declaration regarding alleged criminal gang activity. [Lodg. No. 12, Ex. D, F.] Contemporaneously, LAPD investigators pursing the now infamous “Rampart” police corruption scandal had been informed by fellow CRASH and then convicted officer Rafael Perez that Hewitt was “in the loop” and was well known to fabricate probable cause to arrest, plant evidence, and falsify reports. [Lodg. No. 12, Ex. HJ

Petitioner’s appellate counsel contacted the Los Angeles County District Attorney’s (“DA”) office, requesting Brady discovery regarding Hewitt and that Petitioner’s conviction be reviewed in light of the above developments. [Id., Ex. F.] In apparent response to these inquiries, and after review of the trial transcripts, appellate briefs, and a litany of Hewitt’s purported bad acts, Deputy District Attorney (“DDA”) George Rosenstock concluded in a memorandum to his superiors that:

[I]t appears the credibility of former Officer Hewitt is seriously brought into question by his apparent involvement in a panoply of criminal activities and conspiracies to frame persons utilize excessive force all of which involve moral turpitude. The prior “bad acts” of former Officer Hewitt are discoverable under Brady v. Maryland. It appears that if the jury had been aware of this discoverable material that their estimation of the credibility of Hewitt’s rebuttal testimony may have been materially and negatively affected. Accordingly, confidence in the integrity of the verdict is severely undermined. I recommend that the Attorney General’s Office be informed of our opinion and that a new trial be granted or, alternatively, that a Writ of Habeas Corpus be immediately prepared in support of reversal of the conviction in conjunction with a Motion for a New Trial.

[Lodg. No. 12, Ex. H.]

Although the early indication was that the DA’s office would proceed as recommended by Rosenstock, habeas proceedings were not, in fact, initiated on Petitioner’s behalf. In the ensuing months, Petitioner, through counsel, pursued and obtained Brady materials regarding Hewitt particularly, and the Rampart corruption investigation peripherally. [Lodg. No. 12 at 26-40.] Included in these materials was transcripts of Hewitt’s administrative hearing before the LAPD Board of Rights. [Id. at 32.] At a hearing on June 1, 1999, Hewitt testified that he was assigned to the Rampart CRASH unit from June 1994 to August 1996, and that he “worked Temple Street” for the first two months, after which — and for the remaining two years — he was assigned to “18th Street.” [Lodg. No. 15, Ex. B; Pet., Ex. B.] Transcripts of a subsequent hearing, on June 18, 1999, reflect the Board’s findings and decision prescribing Hewitt’s termination from the LAPD [Lodg. No. 15, Ex. H, I; Pet., Ex. H, I], as well as reveal a 1993 sustained complaint against Hewitt after he and another officer were caught in a lie and engaged in fabrication to protect themselves, which complaint was supported by a letter written by Hewitt’s then commanding officer questioning Hewitt’s maturity and truthfulness. [Lodg. No. 15, Ex. E; Pet. at 19, Ex. E.]

Incorporating information gleamed from the materials disclosed by the state, as well as information Petitioner independently garnered from his independent investigation (including records filed in other courts regarding other convictions subject to review in the wake of Perez’s revelations), Petitioner commenced habeas relief in the state courts seeking to overturn his conviction, in pertinent part, on the grounds that the state withheld material exculpatory and impeachment evidence in violation of Brady, that false evidence was introduced at Petitioner’s trial by Hewitt, Reyes and Foss; and that newly discovered evidence undermined the prosecution’s case and pointed to Petitioner’s innocence. [Lodg. No. 12 at 56; Lodg. No. 15 at 3.]

With respect to Hewitt, Petitioner tracked specific instances of misconduct by Hewitt while assigned to the Rampart division and CRASH — most predating Hewitt’s testimony at Petitioner’s trial and occurring before Hewitt was relieved of duty just days before Petitioner’s sentencing— evidencing Hewitt’s propensity for planting evidence and committing perjury. Petitioner chronicled convictions overturned to date as a result of that misconduct. [Lodg. No. 12 at 26-36; Lodg. No. 15 at 4.] Petitioner documented similar acts of misconduct contemporaneously committed by other CRASH officers, particularly Lawrence Martinez, Hewitt’s partner at the time of Petitioner’s 1995 arrest and Sam Martin, the Temple Street “gang expert” with whom Foss consulted before Petitioner’s trial, both of whom emerged as active participants in the corruption scandal. [Lodg. No. 12 at 13, 20, 27 n. 15, 30, 34, 39-50.]

In addition, Petitioner learned while preparing his traverse in the superior court that in 1997 — before Perez’s revelations about police corruption at the Rampart Division — then Deputy District Attorney Steve Giedzinski reported to his supervisor his belief that a police report in a case he was then prosecuting falsely reported that four witnesses identified the defendant at a field show-up after being admonished of field show-up procedures. [Lodg. No. 12 at 58-59.] The report, written by Hewitt’s then partner, Baskett, identifies Hewitt as present at the scene and states that Perez and another officer, Mora, conducted the field show up after providing the requisite admonition. Hewitt executed a declaration of probable cause to arrest the defendant, incorporating Baskett’s report, and expressly stating that “we conducted a field show-up” at which the four witnesses “all positively identified” the defendant. [Lodg. No. 12, Ex. UU; Lodg. No. 15, Ex. G; Pet., Ex. G.]

In support of his claim that Jose Reyes falsely testified at trial — particularly with respect to his identification of Petitioner as the park shooter and his testimony that he was no longer a gang member — -Petitioner submitted Delinquent’s signed statement obtained by the defense investigator which evidence Petitioner was unable to present at trial. [Lodg. No. 15, Ex. J; Pet. Ex. J; MER No. 4.]

In addition, Petitioner submitted a report prepared by the defense investigator regarding a follow-up visit to Delinquent, at which time Delinquent’s mother, Juanita Reyes, spontaneously stated (among other things), that Jose Reyes told her that he testified at Petitioner’s trial to help and stand up for Zuniga because no one from else from BLC wanted to. [Lodg. No. 15, Ex. K; Pet. Ex. K.] Petitioner also submitted a copy of a sheriffs gang field identification card dated November 26, 1997, made out in the name of Jose Narciso Reyes, with a date of birth August 13, 1980, indicating membership in BLC, and the moniker “Moreno.” [Lodg. No. 15, Ex. L; Pet., Ex. L.] This item was an exhibit in a separate criminal case; there is no indication in the record that it was disclosed to Petitioner. [See Lodg. No. 15 at 26 and n. 13; Ex. P.] Additionally, Petitioner submitted a transcript of a change of plea hearing on April 30,1999, in Los Angeles Superior Court (Lancaster), at which hearing Jose Narciso Reyes (date of birth August 13, 1980) entered a no contest plea to assault with a deadly weapon and admitted as true the elements of a charged gang enhancement, including that his moniker was “Moreno” and that he was a member of BLC. [Lodg. No. 15, Ex. M at 2, 9; Pet., Ex. M at 2, 9.]

With respect to Foss, Petitioner submitted Foss’ handwritten notes of his interview with Jose Reyes — an exhibit at Petitioner’s trial — -which listed several monikers of gang members who Reyes identified as present at the party preceding the park shooting, none of whom Foss contacted to verify Reyes’ account. [Lodg. No. 15, Ex. N; Pet., Ex. NJ Petitioner also submitted a police report authored by Foss regarding his investigation of Delinquent in January, 1998, for vandalism and graffiti at the same vacant house where Foss took photographs depicting “cross-out” graffiti during Petitioner’s trial. [Lodg. No. 15, Ex. O; Pet., Ex. O.] The report — dated January 12, 1998 — indicates that Foss observed and photographed gang style graffiti inside depicting “BLC” and “Delinquent” and that the photographs taken “will be kept in the investigative file.” [Lodg. No. 15, Ex. 0; Pet., Ex. 0.] In a supplemental report, Foss relates that he contacted Delinquent on January 6, 1998, who “admitted to doing all of this tagging because ‘Temple Street’ was tagged inside” and “Temple Street and BLC do not get along” and that he tagged the house in mid-November. [Lodg. No. 15, Ex. 0; Pet., Ex. 0.] These reports were provided to the defense; however, the photographs referenced therein were not. [Lodg. No. 15, Ex. P; Pet., Ex. P.]

Of the three state courts in which Petitioner filed habeas petitions, only the superior court issued an order to show cause to Respondent. [See Lodg. No. 12, Ex. RR; Lodg. No. 13.] In that court, without expressly admitting that Hewitt testified falsely at Petitioner’s trial, Respondent conceded that:

newly discovered admissible and credible evidence concerning [Officer] Hewitt’s general credibility and character to plant evidence and provide false information has been uncovered from which [the] court could conclude by a preponderance of the evidence that [Officer] Hewitt offered false evidence at Petitioner’s trial concerning the circumstances of the April 23, 1995 traffic stop and arrest of Petitioner, his brother Michael and a third person. The People further admit that they will not litigate the issue of whether or not [Officer] Hewitt actually provided false testimony at petitioner’s trial.

[Lodg. No. 15, Ex. F; Pet. Ex. F.] Irrespective of this concession, Respondent maintained that Petitioner was not entitled to habeas relief because, in pertinent part, Hewitt’s testimony, even if false, was not material to Petitioner’s conviction and that Hewitt’s misconduct was unknown to the prosecution before Perez’ revelations, (which surfaced after Petitioner’s conviction), accordingly, until then, there was no Brady material that the prosecution was obligated to disclose. [Lodg. No. 12 at 57-58.]

Each of Petitioner’s state habeas petitions was submitted and denied by the respective state courts without an evidentiary hearing. [See Lodg. No. 11 (superior court); Lodg. No. 14 (court of appeal); Lodg. No. 16 (supreme court).]

C. Federal post conviction proceedings

At an evidentiary hearing before this court on June 3, 2008, Foss testified on direct examination that at the time of Petitioner’s trial, he had been a deputy sheriff for about ten years, and had been a gang officer in Palmdale for about two and a half years. One of his responsibilities as a gang officer was to maintain gang files. [EHT at 11, 14.] Foss testified as an expert witness at Petitioner’s trial, opining that Zuniga’s shooting was gang-related and that Petitioner was an active member of Temple Street gang at the time of the shooting. [EHT at 14-15.] Although he viewed and considered field identification cards and relied on Reyes’ testimony in forming both of these opinions at trial, his opinion would be the same without them. [EHT at 24, 29-31.] Nor would his opinion that Petitioner’s brother, Michael, was an active gang member change. [EHT at 31.] Hewitt testified at trial after Foss; Foss did not take Hewitt’s testimony into account in rendering his opinions. Nor, to Foss’ knowledge, had he talked to Hewitt before he testified. [EHT at 28-29, 31.]

Foss took three photographs during Petitioner’s trial of graffiti inside a private residence. The photographs depicted “TST” (Temple Street) graffiti crossed out. The graffiti was placed there over a period of months. The first time he was in the residence, Foss saw mostly TST graffiti, but did not photograph it. The second time he was inside the residence, he saw the Temple Street graffiti crossed out and BLC graffiti. In January of 1998, he saw additional graffiti, including the moniker of “Delinquent” and BLC littered throughout the residence. On this occasion, he took photographs, which were maintained in an unrelated graffiti file on Michael Reyes (Delinquent). Foss did not recall whether he was asked about these photographs when he testified at Petitioner’s trial. [EST at 32-33.]

On cross-examination, Foss testified that he got his information about Temple Street from LAPD officer Sam Martin, who was the Rampart expert gang investigator for Temple Street, as well as from a second Rampart officer whose name he did not recall. Foss documented these contacts — which occurred after Petitioner’s arrest and concerned Petitioner and Temple Street — but he has never produced that documentation. Foss received FI cards from Martin. He did not receive any information from Rampart regarding gang rivalries in Antelope Valley. [EHT at 34-35.]

Although Foss had not had discussions with Hewitt about his testimony, Foss had received information about the 1995 incident from Martin. Foss recalled that he was informed that Petitioner, his brother Michael, and another person were arrested, that they were identified as Temple Street members, that firearms were involved, and that a juvenile petition was submitted. [EHT at 35-38.] Foss stated that his contact with Martin was “for the purpose of having a prior predicate act.” [EHT at 37.] He did not recall receiving a copy of the police report from Martin; he received a copy of it from Hewitt on the day Hewitt testified at Petitioner’s trial. [EHT at 38.] The information he received from Martin factored into his opinion that Petitioner was an active member of Temple Street at the time of the shooting to the extent that it showed a prior gang association or allegiance. [Id.]

Foss’ opinion that there was a pre-existing rivalry between Temple Street and BLC before the Zuniga shooting was based on information he received from confidential sources, i.e. gang members, about a shooting by Temple Street members directed at BLC members. Foss stated that he had received secondhand information that Petitioner was the shooter, but did not note that in the arrest report. Foss testified that did he not have an eyewitness account from a witness present at the shooting until BLC gang member Jose Reyes came forward during Petitioner’s trial. [EHT at 89-40.]

Foss testified that he could not recall the exact date he first time he saw Temple Street graffiti in the vacant house, but that it was in September or October of 1997. He believed that the second time he was there and saw the cross-outs with BLC was mid-October. He did not photograph or otherwise document in a report his observations at either time, but believed he informed his partners about the cross-outs because they “were paying close attention to this particular area, the street.” [EHT at 42-44.]

Foss took photographs the next time he saw graffiti at that location, which was the first week of January, 1998. The photographs were different than the ones he took during Petitioner’s trial; they focused on documenting the moniker of “Delinquent” and “BLC,” not “cross-outs.” Foss stated there was graffiti throughout the two-story house; as he testified at trial, the graffiti was on-going. He talked to Michael Reyes (“Delinquent”) about the graffiti he photographed, and submitted a juvenile petition against him based on it. [EHT at 44-45.]

The photographs taken in January were maintained in the graffiti file, which no longer exists. Foss discussed them with the DDA prosecuting Petitioner’s case, and almost certainly showed them to him as well; the prosecutor did not want to use them at Petitioner’s trial. The reason Foss took photographs during Petitioner’s trial was to depict cross-out graffiti that Foss “would have saw [sic] prior to this incident.” [EHT at 45-46.] Foss did not know whether the defense requested access to the photographs he took in January; in his opinion, they were unrelated to Petitioner’s case; they were not of “cross-outs.” However, Foss recalled that one of the photographs taken in May depicted “Delinquent” near a cross-out. [EHT at 46-48.] Foss testified that the first time he saw Delinquent’s tagging was in early January, 1998. He took two to four photographs; he did not then photograph the graffiti he previously observed which signaled a rivalry between BLC and Temple Street. [EHT at 51-52.]

To date, Foss still has no information substantiating Jose Reyes’ identification of Petitioner as the park shooter. Foss testified that he contacted Jose Reyes after receiving word that Reyes wanted to talk to him. Reyes told him he was no longer an active BLC member and had stopped gang-banging, in part because of the park shooting. Foss was aware that Reyes identified himself as a BLC member a month later, on November 26, 1997, as documented in a field identification card. Foss did not recall how the field identification card came to his attention, assumed that he provided it to the prosecutor, and believed that it was included in the “packet” produced at trial. [EHT at 53-55, 57-58.] He acknowledged that on November 26, 1997, a search warrant was executed at Jose Reyes’ residence, during which gang graffiti and evidence of gang membership was found in Reyes’ bedroom; evidence that in his opinion was indicative of active gang membership. [EHT at 59.]

Foss testified that he spoke to Delinquent about the park shooting. Delinquent told Foss that he was present at the time. Foss testified that Delinquent “was unable to give an identification of who did the shooting.” Delinquent told him he could not make an identification because it was too dark, or too dark to see from where he was at. [EHT at 60.] Foss recalled that Reyes testified that the park shooters identified themselves as members of “M.C.” Foss was aware of “M.C.” at the time, describing them as “tag bangers”— i.e., tagger crossing over the line to being gang members — who were “clicked up” (affiliated) with Temple Street. [EHT at 61-62.] Foss did not recall having any further contact with Jose Reyes after May, 1998, when he testified at Petitioner’s trial, and through his tenure as a gang investigator, which ended in October 2000. [EHT at 63.]

On redirect examination, Foss testified that he first heard about the park shooting from a confidential informant who was not there but had heard about it from other gang members. Local police responded to the park, but no one was there and they found no evidence of a shooting. [EHT at 64.] Delinquent told him that he could not identify the shooter(s) from where he was positioned, but that he suspected that they were from Temple Street. Foss testified that the shooting itself — irrespective of the identification of Petitioner as the shooter— was indicative of an active rivalry between the two gangs. [EHT at 65.] Foss testified that community service officers with his unit were tasked with photographing and reporting gang graffiti in the area, and that although useful for intelligence purposes, he did not commonly take photographs unless the graffiti was relevant to a crime. Graffiti may be multi-layered over a period of time. Graffiti on public walls is usually covered over; here, the graffiti was in a private residence. [EHT at 66-67.]

Foss contacted Martin within one to three days of the shooting. The opinions he gave at trial would not change if he could not rely on Martin’s information. [EHT at 67-68.] In his experience, gang members commonly claim that they have left their gangs, and quite frequently they go back to them. [EHT at 68.]

On re-cross examination, Foss testified that he documented his conversation with Delinquent, but that he did not have that documentation, stating: “There was a legal reason ... during the trial.” [EHT at 71.] Foss believed that the information Delinquent gave him — that he could not identify the shooter because it was too dark — was given to the prosecutor, but that at the moment he could not recall. [EHT at 70-71.]

Respondent did not dispute the court’s proposed finding that Hewitt provided false testimony at Petitioner’s trial, stating “that’s been conceded for years.” [EHT at 79.]

After the evidentiary hearing, the court grant