Full opinion text
MEMORANDUM OPINION AND ORDER MARTHA VÁZQUEZ, District Judge. THIS MATTER comes before the Court on Petitioner Carl Case’s Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody [Doc. 1]; Respondent Tim Hatch’s Motion to Dismiss the Application for Writ of Habeas Corpus [Doc. 17]; and Petitioner’s Partial Motion for Reconsideration [Doc. 76]. The Court has considered the Petition and corresponding Memorandum of Law [Doc. 9], Respondent’s Answer [Doc. 16], Motion and corresponding Memorandum in Support [Doc. 18], the parties’ extensive supplemental briefing and argument presented at the December 9-10, 2010 evidentiary hearing, along with the state court record and the relevant law governing habeas corpus petitions. While the Court is aware that it is quite the rare habeas corpus petitioner who satisfies the strict standard imposed upon him under the provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) governing second and successive petitions, the circumstances of the instant case make this one such rare petition. As set forth below, the Court FINDS that Mr. Case has satisfied the requirements articulated in 28 U.S.C. § 2244(b)(2)(B) for evaluating the merits of a second or successive habeas corpus petition. The Court FURTHER FINDS that Mr. Case’s Petition for a Writ of Habeas Corpus [Doc. 1] will be CONDITIONALLY GRANTED for the reasons stated herein. Accordingly, Respondent’s Motion to Dismiss [Doc. 17] shall be DENIED. Because the Court finds that Mr. Case has satisfied the standard articulated in Section 2244(b)(2)(B), it further finds that Mr. Case’s Motion for Partial Reconsideration [Doc. 76] shall be DENIED AS MOOT. PARTI: BACKGROUND I. PROCEDURAL HISTORY Petitioner Carl Case was convicted by jury on October 26, 1982 of first-degree murder and first-degree criminal sexual penetration of Nancy Mitchell, and sentenced to life imprisonment plus eighteen years. The New Mexico Supreme Court affirmed his convictions in a published opinion. State v. Case, 100 N.M. 714, 676 P.2d 241 (1984). Subsequently, he sought relief in the federal courts. The district court conditionally granted Mr. Case’s federal habeas petition on November 25, 1985. Doc. 16 at Ex. B, pp. 1 & 14. On March 6, 1987, the Tenth Circuit reversed and remanded for an evidentiary hearing. Id. at 15. On March 4, 1988, the district court again granted Mr. Case’s federal habeas petition, on different grounds. Id. at 23 & 31. The Tenth Circuit again reversed the district court on October 25, 1989, ultimately denying Mr. Case relief. Case v. Mondragon, 887 F.2d 1388 (10th Cir.1989). In 2004, Mr. Case filed a petition for a writ of habeas corpus in state district court. The petition arose from the recantations of trial testimony by two witnesses, the discovery of an untranscribed statement by a third witness, as well as DNA testing that was performed at the request of habeas counsel. The state district court held a three-day evidentiary hearing, during which the two recanting witnesses, Audrey Knight and Paul Dunlap, testified under oath, and under threat of prosecution for perjury, that they had fabricated their 1982 trial testimony in its entirety. Mr. Case’s trial counsel, Gary Mitchell, and the prosecutor, James Klipstine, offered testimony regarding the undisclosed interview transcript of the third witness, Bobby Autry. The recently completed DNA testing revealed no male DNA or sperm cells in the evidence taken from Ms. Mitchell’s body. Ultimately, the state district court denied the petition in a one page order. The relevant portions of this order include the following findings: (1) The State did not illegally suppress materially favorable evidence; (2) The State did not knowingly or recklessly present false testimony at Mr. Case’s trial; and (3) The recantations of Audrey Knight and Paul Dunlap were not “newly discovered evidence” in that, assuming arguendo that their original testimony was false, Mr. Case knew it was false at the time they gave it. Order Relief on Writ of Habeas Corpus at ¶¶ 1-3. The New Mexico Supreme Court granted certiorari review, and denied relief in a published opinion. Case v. Hatch, 144 N.M. 20, 183 P.3d 905 (2008). The court found the recantations of Ms. Knight and Mr. Dunlap cumulative, and further found that the prosecution did not suppress materially favorable evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, the New Mexico Supreme Court found that Petitioner’s Brady claim failed for lack of materiality because there was no evidence presented at trial that Bobby Au-try had harmed Nancy Mitchell, and Carl Case had testified that her death was accidental. The instant federal petition followed. Because Mr. Case had previously sought habeas corpus relief in the federal courts, he was required to obtain permission to proceed from the Tenth Circuit Court of Appeals. That court granted permission in a written order on July 1, 2008. Doc. 5. On September 24, 2010, this Court issued a Memorandum Opinion and Order in which it held that a limited evidentiary hearing was necessary to resolve Mr. Case’s petition. Doc. 46. This hearing was held on December 9 and 10, 2010. The hearing was limited to the issue of the credibility of Ms. Knight’s and Mr. Dunlap’s recantations, and the Court appointed counsel to represent the witnesses for the purpose of advising them about their privilege against self-incrimination, as well as any possible exposure to perjury charges. After being advised by counsel, both witnesses testified credibly as to their recantations, and a complete analysis of their credibility is set forth below. See Part II, Section 1(C)(4), “Credibility of the Recantations,” infra. II. FACTUAL BACKGROUND On January 30, 1982, the body of Nancy Mitchell was discovered in Eddy County, New Mexico, outside of Carlsbad and near an area on the Pecos River known locally as Six-Mile Dam. The medical evidence at trial established that Ms. Mitchell died at least three weeks, and possibly up to six weeks, before her body was discovered. She had bruises on the front of her upper body and a fractured skull. The cause of death was exposure to the elements. Ms. Mitchell was a local teenager who had run away from home on or about December 11, 1981. While a runaway, she stayed with friends and occasionally in hotels. The last undisputed sighting of Ms. Mitchell was approximately 9:00 or 10:00 p.m. on or about December 21, 1981, at the apartment of Ricky and Mary Worley. Ms. Mitchell spent the previous night at the Travelodge, but checked out that day and brought her clothes to the Worley residence. Ricky’s brother Curtis Worley drove her to the apartment. Also present at the Worley residence were three young men named Mike Tweedy, Bobby Autry and Randy Davis. Ms. Mitchell left the residence with Bobby Autry, who claimed that he drove around with her for some time until he dropped her off at the Dairy Queen, where he last saw her talking to two unknown men in a blue pickup truck. According to Mary Worley, when Ms. Mitchell left the apartment with Mr. Autry she was wearing the same clothing in which her body was found. At Mr. Case’s trial, three local teenagers — Audrey Knight, Bobby Autry, and Paul Dunlap — testified that they had seen him with a group of boys and Ms. Mitchell at a party the night she disappeared. They told inconsistent stories, but all three stated that Mr. Case was present at Six-Mile Dam when a group of boys attacked and sexually assaulted Ms. Mitchell. The inconsistencies in these three individuals’ stories will be analyzed in further detail below. See Part II, Section 11(C)(1)(c), “Inconsistencies Between ‘Eyewitness’ Accounts,” infra. In 2003, Audrey Knight contacted the father of Curtis Worley, one of Mr. Case’s co-defendants, and told him that she had fabricated her trial testimony. Law students and lawyers from the University of New Mexico Innocence and Justice Project, who were already working on Mr. Case’s case, investigated Ms. Knight’s claim that she had fabricated her testimony. In the course of this investigation, counsel contacted Paul Dunlap, who also admitted that his trial testimony had been false. In an affidavit given to habeas counsel, Ms. Knight stated that her testimony at trial was untrue for various reasons, including intense pressure she felt from law enforcement. Mr. Dunlap also provided an affidavit, in which he stated that he had no knowledge of Carl Case or anyone else attacking Nancy Mitchell, and had no knowledge of how Nancy Mitchell died. Mr. Dunlap said he testified untruthfully at trial because he had been in jail for six months, was threatened with prosecution as an adult for the alleged rape and murder of Nancy Mitchell, and was offered immunity for implicating the defendants. Law students at the Innocence and Justice Project reviewed the prosecutor’s file and discovered a taped interview with Bobby Autry that had not been transcribed nor provided to defense counsel before Mr. Case’s trial in 1982. Mr. Case argues that this constitutes an unconstitutional violation of the disclosure requirements set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). PART II: PROCEDURAL REQUIREMENTS FOR SECOND AND SUCCESSIVE HABEAS CORPUS PETITIONS I. APPLICABLE LAW Before a district court may reach the merits of a second or successive habeas corpus petition, a state prisoner must demonstrate that he meets the requirements set forth in the provisions of AEDPA governing second or successive petitions. See 28 U.S.C. § 2244(b). Pursuant to this section, the petitioner must receive authorization from the Court of Appeals before he may file a second or successive petition in district court. 28 U.S.C. § 2244(b)(3). The Court of Appeals may authorize the filing of such a petition if it finds that the petitioner makes a prima facie showing that he satisfies the strict standard set forth in Section 2244(b)(2). A “prima facie showing” is simply “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” Ochoa v. Sirmons, 485 F.3d 538, 545 (10th Cir.2007) (citation omitted). After the appropriate Court of Appeals grants the petitioner’s motion to file a second or successive habeas petition, he may file said petition in the district court. In cases resting on what has been termed the “innocence” component of AEDPA (as opposed to a claim resting on a new rule of constitutional law), see Ochoa, 485 F.3d at 541-42 & 542 n. 4, the district court may only reach the merits of the petition if it first finds: (i) the factual predicate for the applicant’s claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(B)(i)-(ii). The Supreme Court has held that this provision requires the petitioner to show “that the facts underlying the claim establish his innocence by clear and convincing evidence.” Calderon v. Thompson, 523 U.S. 538, 558, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). Once these two requirements are satisfied, the Court looks to AEDPA’s substantive provisions to adjudicate the merits of the petition. II. DISCUSSION Mr. Case must first demonstrate that “the factual predicate for [his] claim could not have been discovered previously through the exercise of due diligence.” 28 U.S.C. § 2244(b)(2)(B)(i). He then faces a heavy burden under AEDPA to prove by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found him guilty of Nancy Mitchell’s rape and murder beyond a reasonable doubt. As described in detail below, Mr. Case has satisfied the “due diligence” requirement under subsection (B)(i), and has further established constitutional error in the form of a pretrial statement of a prosecution witness that was materially favorable to the defense, and which the prosecution failed to disclose in violation of Brady v. Maryland. Mr. Case has further demonstrated that this constitutional violation, when viewed in light of the evidence as a whole, so drastically undermines the State’s evidence against him that no reasonable factfinder could have found him guilty of the rape or murder of Nancy Mitchell. A. Due Diligence Following Audrey Knight and Paul Dunlap’s recantations, law students investigating Mr. Case’s claims discovered an untranscribed tape of an interview with Bobby Autry in the prosecution’s file. Mr. Autry was interviewed on January 30, February 3, March 5 and March 12, 1982. Whereas the prosecution in Mr. Case’s trial disclosed transcriptions of three of these interviews to the defense, Mr. Case contends that the February 3rd interview was never transcribed and the tape was never disclosed to Mr. Case’s trial counsel. The parties have provided the Court with transcriptions of all four Bobby Autry interviews, but the format of the February 3rd transcription is different, as it was not prepared in 1982, but rather transcribed in preparation for the state habeas litigation. Neither party has located a 1982 transcription of this statement. At the state evidentiary hearing, UNM law student Witter Tidmore testified that he and Todd Coberly, also a law student at the time, went to Carlsbad in June of 2005 to investigate the District Attorney’s file on Mr. Case’s case. He explained that the D.A.’s office had an “open-file policy,” and he and Mr. Coberly wanted to “go through that file and make sure that we had a complete record [of it].” State Evid. Hr’g Tr. at 34. Mr. Tidmore stated that he and Mr. Coberly each had a list of everything in their files, and they compared their lists to what they found in the D.A.’s file. They noted a number of photographs and documents that they did not have in their files. They then compared the cassette tapes in the D.A.’s file to those the students had in their file, and discovered the February 3rd Bobby Autry interview, which they did not recognize from their file. They later confirmed that neither the tape itself nor a transcription of the statement were in their file. Later during the state evidentiary hearing, Mr. Case presented the testimony of his 1982 trial counsel, Gary Mitchell. Mr. Mitchell testified that at the time of Mr. Case’s trial, the D.A.’s office had an “open-file policy” that applied to all criminal cases. Specifically with respect to witness interviews, the Sheriffs Department would transcribe them onto lined paper and the DA’s office would provide these transcriptions to the defense. Although the tapes would have also been available, the general understanding was that all taped interviews were transcribed. Mr. Mitchell generally would have assumed that the set of transcriptions in any given file was a complete and accurate record of the interviews on the audio tapes, and he would not have listened to the audio recordings in addition to reading the transcriptions. With respect to the prosecution’s “open-file policy,” Mr. Mitchell stated: “I’ve never in this district had a difficult time going to somebody’s office and saying, let me see what you guys have.” State Evid. Hr’g Tr. at 270. When asked if he had heard or read Bobby Autry’s February 3rd statement prior to Mr. Case’s trial, Mr. Mitchell responded: “I went back and reviewed my cross-examination of Bobby Autry after reviewing this. In my heart of hearts, I’m convinced I didn’t have this.” State Evid. Hr’g Tr. at 259. Following Mr. Mitchell’s testimony, James Klipstine, the prosecutor in Mr. Case’s 1982 trial, testified. He stated that the D.A.’s office “had an open-file policy, which meant that the defense attorney at any time they requested to would actually have an opportunity to review our file.” State Evid. Hr’g Tr. at 333. He further stated that “tapes themselves were not disclosed unless they were specifically requested. Usually what would happen is the law enforcement agency involved in the investigation would transcribe interviews, deliver to the D.A.’s office, and then we would disclose the transcription as opposed to the tape themselves.” Id. at 335. According to Mr. Klipstine, had the Sheriffs Department transcribed Mr. Autry’s February 3rd statement, the transcription would have been disclosed to the defense. Given the transcription procedures employed by the D.A.’s office in Carlsbad in 1982, it is reasonable that Mr. Case’s defense counsel assumed that the transcriptions contained in the prosecution file represented a complete set of the witness statements. “Due diligence” does not require a defense attorney, when presented with a file he is told is the prosecution’s complete file, to go out of his way to request audio tapes of every single witness statement to ensure that the transcriptions are complete. Moreover, the Tenth Circuit has cautioned that to allow the prosecution to hide behind an open file policy to escape its disclosure requirements “would permit the prosecution to ... talismanically invok[e] the words ‘open file policy,’ and thus circumvent the purpose behind Brady.” Smith v. Sec’y of New Mexico Dep’t of Corr., 50 F.3d 801, 828 (10th Cir.1995). The Tenth Circuit reasoned that allowing an open file policy to per se satisfy the prosecution’s constitutional disclosure requirements would “fail[ ] to recognize that Brady material may be found in places other than a prosecutor’s file.” Id. It may be inferred from the Tenth Circuit’s reasoning that where, as here, an item of evidence is not in the prosecution’s “open file,” the defense is not expected to find it. Respondent has presented no evidence to contradict the witnesses’ testimony at the state evidentiary hearing, which unequivocally established that Bobby Autry’s February 3rd statement was indeed missing from the file that the prosecution represented to be complete. The Court therefore finds that Mr. Case has satisfied the requirements of § 2244(b)(2)(B)®, as he has demonstrated that the February 3rd statement is newly discovered evidence that “could not have been discovered previously through the exercise of due diligence.” See § 2244(b)(2)(B)®. B. Constitutional Error Having satisfied the requirements of subsection (B)(i), Mr. Case now must demonstrate pursuant to subsection (B)(ii) that “the facts underlying [his] claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish • by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found [him] guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). Before analyzing Mr. Case’s claims in light of the evidence as a whole, the Court considers whether or not he has shown that constitutional error — in the form of a Brady violation — occurred at his trial. 1. Brady v. Maryland and its Progeny The Supreme Court’s landmark Brady decision stands for the principle that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. In United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court defined “three quite different situations” in which the rule of Brady applies. First, “the undisclosed evidence demonstrates that the prosecution’s case includes perjured testimony and that the prosecution knew, or should have known, of the perjury.” Id. Second, the defense requests some specific kind of exculpatory evidence, yet the prosecution fails to disclose it. Id. at 104-06, 96 S.Ct. 2392. Third, the defense makes a general request for Brady material, or makes no request at all, yet the prosecution fails to volunteer evidence in its possession. Id. at 106-07, 96 S.Ct. 2392. In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Court “abandoned the distinction between the second and third Agurs circumstances, i.e., the ‘specific-request’ and ‘general- or no-request’ situations.” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). In Bagley, the Court held that regardless of the type of request, the prosecution’s suppression of materially favorable evidence amounts to a constitutional violation “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles, 514 U.S. at 433, 115 S.Ct. 1555 (quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375 (opinion of Blackmun, J.); and 685 (White, J., concurring in part and concurring in judgment)). To establish a reasonable probability of a different result, “[a] defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” Kyles, 514 U.S. at 434-35, 115 S.Ct. 1555. Rather, the convicted individual must demonstrate that “[t]he favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435, 115 S.Ct. 1555. Both impeachment evidence and exculpatory evidence fall within the Brady rule, and the law does not distinguish between these two types of evidence. Bagley, 473 U.S. at 676, 105 S.Ct. 3375. In Kyles, the Court expanded upon the concept of a “reasonable probability” that the result of the proceeding would have been different. The Court noted that only the prosecution knows the content of undisclosed evidence, so it alone must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of “reasonable probability” is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith), the prosecution’s responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable. Id. at 437-38, 115 S.Ct. 1555 (emphasis added). The Tenth Circuit has affirmed the principle time and time again that suppressed evidence in the hands of police or other agents of the prosecution still amounts to a Brady violation even if the prosecutor himself had no direct knowledge of the evidence in question. E.g. United States v. Combs, 267 F.3d 1167, 1174 (10th Cir.2001); Engberg v. Wyoming, 265 F.3d 1109, 1117 n. 5 (10th Cir.2001); Smith v. Sec’y of New Mexico Dep’t of Corr., 50 F.3d 801, 824 (10th Cir.1995); see also United States v. Smith, 534 F.3d 1211, 1222-23 (10th Cir.2008) (prosecution suppressed evidence when it failed to disclose report in possession of investigator even though prosecution did not know of report); Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (prosecutor’s duty to learn of favorable evidence has been interpreted broadly because of his “special status” within American criminal justice system). As noted above, situations involving the prosecution’s knowing use of perjured testimony present a distinct category of Brady violations. Agurs, 427 U.S. at 103, 96 S.Ct. 2392. “A conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury’s verdict.” Bagley, 473 U.S. at 679 n. 9, 105 S.Ct. 3375 (citing Napue v. Illinois, 360 U.S. 264, 271, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). 2. Relevant Facts Bobby Autry testified at trial as one of three eyewitnesses to the attack on Nancy Mitchell that led to her death. As noted above, the Eddy County Sheriffs Department interviewed Mr. Autry four times in early 1982, but neither a tape nor a transcription of the February 3rd interview were disclosed to Mr. Case’s trial counsel, a. Bobby Autry’s January 30, 1982 Statement In his January 30th statement, Mr. Au-try denied having any knowledge of the crime, and denied having any sexual encounters with Nancy Mitchell. He explained that he was friends with Ms. Mitchell, and sometime before Christmas of 1981 he and a friend picked her up to go to a party at an area called Gidak’s hole. Ms. Mitchell left the party for a short while with someone named Corbin Price, but she then returned. At the end of the evening Mr. Autry drove Ms. Mitchell back to town, and she wanted him to stay out all night long, but he felt sick and needed to go home. He dropped her off at a Dairy Queen where she saw two male friends in a pickup truck, and he then went home. The deputies asked numerous times if he knew the names of the two boys or if he could describe what they looked like, and he could not. He was able only to say, “Just looked like two dudes in a pickup.” Tr. 1/30/82 Autry Statement at 8. b. Bobby Autry’s February 3, 1982 Statement Bobby Autry again gave a statement to sheriffs deputies on February 3rd, the contents of which were never disclosed to the defense before trial. It appears that this tape remained in the prosecution’s file until 2004, when students at the Innocence and Justice Project discovered it during the course of their investigation. In this statement, Mr. Autry stated that on the night of the party at Gidak’s hole, he had taken Ms. Mitchell for a drive to a place called “the Flumes” before the party. In response to the question of whether he made out with her on this drive, he stated, “I tried, but I — she said no, and I didn’t.” Tr. 2/3/82 Autry Statement at 9. Upon further questioning, the investigators established that Mr. Autry and Ms. Mitchell had gotten fully undressed together, and the following exchange occurred: Q: [W]hen she took her underwear off, did you advance to the intercourse stage? A: Well, we just laid there and fooled around for a while, then I tried to make out with her.... I tried to — I got fixed up about half way in, and she said no, she pushed back, and I said alright. Q: Your penis went half way into her vagina? A: About half, something like that. ■ Q: She never did fight you? A: [No response] Q: She just — she agreed to? A: Well, she pushed me back — she shoved me back when I tried to make out with her. Q: And then what happened? A: She just said let’s go to the party. She got mad, said let’s go to the party. Id. at 11-12. Soon after Mr. Autry admitted that he had indeed briefly had intercourse with Ms. Mitchell, Deputy Dominguez followed up on this issue: Q: Do you remember [the investigators] asking you if you had had, at any time, intercourse with Nancy Mitchell? A: Yeah. Q: And what did you tell him? A: I told him no, cause I, I didn’t know if she was raped at the time or what, and I didn’t want nobody to point the finger at me cause I didn’t do it. Q: [A]s far as you’re concerned, you did have intercourse with her. A: No, not really. Q: Your vagina [sic] went in half way, that’s intercourse. A: Yeah, well, I guess you could say that. But— Q: How long did you stay there, in her? A: Bout that long. I barely got in and she just pushed me back. Q: Did you get mad? A: No. I got — I got mad, yeah, but not, not that mad. I said well hell, ain’t no great big loss to get turned down by a girl. Q: You didn’t get mad because she wouldn’t let you? A: Well, anybody’d get mad, but — I don’t mean like in — like you’re gonna do something like that to her. Just get kind of teed off or something. Id. at 14-16. Mr. Autry agreed to give the investigators hair and blood samples, and the interview continued. The details that Mr. Autry provided next were inconsistent with his January 30th interview. Whereas on January 30th he stated that Ms. Mitchell had left the party at Gidak’s Hole with Corbin Price and then returned, on February 3rd he stated that he did not see her after she left with Mr. Price. Rather, he saw her one or two days later, when he was driving around with her and dropped her off at the Dairy Queen at the end of the night, where she saw two male friends in a pickup truck. He again was unable to identify the two boys in the truck. c. Bobby Autry’s March 5, 1982 Statement On March 5, 1982, Bobby Autry told investigators that he saw Nancy Mitchell in downtown Carlsbad about two or three nights after the party at Gidak’s hole, but he then corrected himself to say one or two nights. Tr. 3/5/82 Autry Statement at 1. It is not clear from the transcript if he was referring to that night or the night of the party, but he stated that when he and Ms. Mitchell were “riding around,” he “tried making out with her.” Id. at 3. He elaborated only insofar as to state: “I tried making out with her. Got her clothes and we was drunk.” Id. d. Bobby Autry’s March 12, 1982 Statement On March 12, 1982, Bobby Autry took and failed a polygraph test. Later that day, Mr. Autry again gave a statement to representatives of the Eddy County Sheriffs Department, after telling one of the deputies on the telephone that he had information regarding Ms. Mitchell’s death and a “pact” related to it. Tr. 3/12/82 Autry Statement at 1. He stated that he was in town when Nancy Mitchell and a group of boys — including Curtis Worley, Carl Case, Mike Tweedy, Joe Brown, and someone he could not identify — picked him up to go “riding around.” Id. The officers had the following exchange with Mr. Au-try: Q: Is that the one, you said you knew his name was Paul? Q: [Illegible] fellow, tall skinny? A: Well I couldn’t really identify him. Q: Paul Dunlap? A: Yes, something like that. Id. After driving around town, the seven of them drove towards Six-Mile Dam to drink beer. Mr. Autry denied that they went to a party or met up with other people before going to the dam. He stated that after they got out of the car Curtis Worley hit Nancy Mitchell with his fist, knocked her to the ground, and tried to tear her clothes off. Someone else, possibly Joe Brown, hit her in the back of the head with a stick or pipe. Mr. Autry said he ran off, but he heard Ms. Mitchell yelling for help and he saw the others on top of her. He got home about fifteen minutes after midnight. He did not see anybody else arrive at the scene, but claimed to have seen the others attacking Ms. Mitchell on the ground and then putting her back into the car. Mr. Autry said that he received threatening phone calls telling him not to tell anyone about what he had seen. When asked if he ever saw Audrey Knight that evening, he stated, “I don’t guess I know an Audrey Knight.” Id. at 12. The investigators tried to describe her to him, but he maintained that he did not know her. The investigators then steered the interrogation to the night shortly before Christmas that Mr. Autry had been driving with Nancy Mitchell. They asked him what he did with her that night, and he simply stated that they drove around for a while and then he dropped her off at Dairy Queen. He then said that he saw Ms. Mitchell two or three days later with Mr. Worley, Mr. Case and “Paul Dunlap guy.” Id. at 7. When asked to describe Paul Dunlap, Mr. Autry could not remember what he looked like. The investigators asked: “Was he a white male? ... He wasn’t a black guy was he or a Spanish guy.” Id. Mr. Autry responded, “Uh uh, he wasn’t black.” Id. Mr. Autry offered no further details about what Paul Dunlap looked like. He was able to give at least some details about what Carl Case, Joe Brown and Mike Tweedy looked like, e. Bobby Autry’s Trial Testimony At trial, Mr. Autry testified that on the night of January 1, 1982, Curtis Worley, Carl Case, Joe Brown, Mike Tweedy, and Paul Dunlap picked him up in town right around when it was getting dark, and Nancy Mitchell was in the car. He stated that the group did not go to a party, but rather drove a few times up and down the main drag in Carlsbad, and then headed directly toward Six-Mile Dam on a dirt road called Forni Road. On the way to Six-Mile Dam, they stopped on Forni Road, where people used the bathroom and threw beer bottles at a sign on the road. When asked on direct examination about his relationship with Ms. Mitchell, Mr. Au-try stated that she was not his girlfriend, rather she was “more or less just a pretty close friend.” Trial Tr. at 979. Mr. Klipstine asked Mr. Autry as follows: Q: Did you ever have sexual intercourse with Nancy Mitchell? A: No, sir. Q: Did you ever try? A: Yes, sir. Q: When was that? A: I don’t know what date it was for sure. Q: Was that before or after she had run away? A: After. Trial Tr. at 980. Mr. Autry then described the scene at Six-Mile Dam after everyone got out of the car. Mr. Worley “reached out to pinch Nancy on the breast and she slapped him and he hit her and knocked her down. Everybody was just like a bunch of vultures on her.” Id. at 982. Mr. Case pushed Ms. Mitchell to the ground. It appeared that Joe Brown tried to hit Ms. Mitchell with something, possibly a pipe. Mr. Worley ripped Ms. Mitchell’s pants open and the rest of the group tried to tear her clothes off. Mr. Autry ran home because he wanted nothing to do with the attack, and he estimated that he arrived home around midnight. He later received calls on the telephone, once from Mr. Worley, and once from a voice he believed to belong to Mr. Case, both of whom threatened Mr. Autry as well as his parents. Mr. Autry maintained that he did not tell anyone about what he saw because he was scared. When the police first questioned him, he did not tell them what happened because he and his parents had both received threats, and he did not want to risk his or his parents’ lives. He stated that he finally told the truth after he took — and presumably failed — a lie detector test. On cross examination, the defense demonstrated to the jury that although Mr. Autry was originally charged with Ms. Mitchell’s rape and murder, he was released from jail under what appeared to be an offer of immunity in exchange for his testimony against the other defendants. The defense attempted to impeach Mr. Autry with his inconsistent statements during the three interviews it had knowledge of; however, Mr. Autry was able to reconcile the inconsistencies by explaining he initially lied because he and his parents were threatened. The defense next tried to impeach him by showing that he generally did not get along with Mr. Case or Mr. Worley. He had fought with Mr. Case over Mr. Case’s ex-wife, and he had fought with Mr. Worley over Ms. Mitchell. Finally, the defense elicited testimony from Mr. Autry that he had spent some time in jail for this offense, and attempted to suggest that he was so scared of going to prison that he would lie and implicate others in order to take the investigation off of him. Although he admitted that the prospect of going to prison was “frightening,” Mr. Au-try maintained that he was not scared of what might happen to him there, because “I ain’t stupid enough to go to the state penitentiary.” Trial Tr. at 1027. On re-direct examination, Mr. Klipstine asked Mr. Autry if Ms. Mitchell “slept around,” .to which he replied that he did not know. Trial Tr. at 1031. Mr. Klipstine then confirmed that Mr. Autry “had tried [to sleep with her], ... and hadn’t been successful.” Id. On re-cross examination, defense counsel did not pursue any questioning regarding Mr. Autry’s attempt to have a sexual relationship with Ms. Mitchell. Rather, counsel again attempted to impeach Mr. Autry by demonstrating the ways in which his story changed between the interviews conducted on January 30, March 5, and March 12, 1982. 3. Analysis a. Suppression The Magistrate Judge in the instant federal case concluded that “the February 3 statement was not transcribed and not produced to defense counsel.” Doc. 41 at 11. Respondent did not file objections to this finding. The Court agrees that the statement was suppressed, based on the overwhelming evidence in this case. See Section 11(A), “Due Diligence,” supra (finding that the February 3rd statement constitutes newly discovered evidence that Mr. Case could not have previously discovered through the exercise of due diligence). Although the sheriffs department’s policy was generally to transcribe witness interviews for the prosecution, neither party has located a transcription of Mr. Autry’s February 3rd interview that matches the format of the other 1982 transcriptions. Moreover, Mr. Case has provided excerpts of the transcripts of his co-defendants’ trials, which all but definitively demonstrate that no defense attorney had access to the tape. See Doc. 16, Ex. E at 6 (Petitioner’s Supplemental Memorandum of Law, filed in state district court in August of 2005, highlighting (1) portion of cross-examination of Mr. Autry at Curtis Worley’s trial, in which defense counsel referred to the three statements Mr. Au-try gave to police, and labeled the dates of the statements as January 30, March 5, and March 12, 1982; and (2) portion of redirect examination of Mr. Autry at Joe Brown’s trial, where prosecutor elicited testimony from Mr. Autry that he had “made a pass” at Ms. Mitchell, but did not get angry at her when she “said no”). As Respondent has in no way rebutted this evidence, the Court finds that the statement was suppressed. The parties dispute whether or not the prosecutor, James Klipstine, knew of the suppressed Bobby Autry statement. Regardless of whether or not Mr. Klipstine had subjective knowledge of the suppressed February 3rd statement, Deputy Tony Dominguez, who interviewed Mr. Au-try, certainly did. In fact, Deputy Dominguez persisted in questioning Mr. Autry about his sexual encounter with Ms. Mitchell, which eventually led to his concession that they had indeed had intercourse. It is well-established that “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.” Kyles, 514 U.S. at 437-38, 115 S.Ct. 1555. b. Favorability and Materiality Evidence is “favorable to an accused,” Brady, 373 U.S. at 87, 83 S.Ct. 1194, when it has any exculpatory or impeachment value to the defense. Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936. At the very least, the suppressed February 3rd statement would have been favorable to Mr. Case’s defense for its potential to impeach Bobby Autry’s testimony under oath that he had never had sex with Nancy Mitchell. See Case, 183 P.3d at 919 (suppressed statement had “some impeachment value”). The parties vehemently disagree as to whether or not the statement was material. Before evaluating the materiality of the statement, the Court must ascertain the proper standard to apply. Citing the case law establishing that “a conviction obtained by the knowing use of perjured testimony ... must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury,” Agurs, 427 U.S. at 103, 96 S.Ct. 2392, Mr. Case argues that the Court should apply the “any reasonable likelihood” standard, rather than Brady’s generally stricter standard of “reasonable probability” of a different result. In his argument, Mr. Case assumes that the “any reasonable likelihood” standard applies equally to cases in which the prosecution actually knew it was presenting perjured testimony, and those in which it should have known that a witness was perjuring him or herself. See Doc. 9 at 32 (“[I]f the prosecution allowed testimony that it knew or should have known was perjured, the rule is that relief will be granted ‘if there is any reasonable likelihood that the false testimony could have affected the judgement of the jury.’ ” (quoting Bagley, 473 U.S. at 678, 105 S.Ct. 3375) (emphasis in Petitioner’s brief)). The law is not as clear as Mr. Case would like it to be. In Agurs, the Supreme Court articulated three distinct circumstances in which Brady applies, one of which is when “the undisclosed evidence demonstrates that the prosecution’s ease includes perjured testimony and that the prosecution knew, or should have known, of the perjury.” 427 U.S. at 103, 96 S.Ct. 2392. In Bagley, Justice Blackmun explained that Agurs established “a materiality standard under which the fact that testimony is perjured is considered material unless failure to disclose it would be harmless beyond a reasonable doubt.” 473 U.S. at 679, 105 S.Ct. 3375. However, this portion of Bagley did not command a majority of the Supreme Court. See United States v. Kaufmann, 783 F.2d 708, 709 (7th Cir.1986) (“this portion of [Justice Blackmun’s] opinion was joined only by Justice O’Connor and, consequently, does not constitute a holding of the [Supreme] Court.”). The Court has found no Tenth Circuit case law adopting the principle that the prosecution’s use of testimony it should have known was perjured should be subjected to the “any reasonable likelihood” standard. As Mr. Case has not demonstrated that Mr. Klipstine knowingly elicited perjured testimony from Mr. Autry, see Part III, Section 111(A)(3), “Presentation of Perjured Testimony,” infra, the proper standard to apply to the suppressed Bobby Autry statement, and to the prosecution’s use of Mr. Autry’s perjured testimony, is the general Brady standard of “reasonable probability.” At the outset of the materiality analysis, it is important to note that “[w]hat might be considered insignificant evidence in a strong case might suffice to disturb an already questionable verdict.” Banks v. Reynolds, 54 F.3d 1508, 1518 (10th Cir.1995). Materiality depends upon the circumstances; when a habeas petitioner’s claim rests on an alleged Brady violation, relief is not warranted if his “conviction is supported by overwhelming evidence of guilt.” Leka v. Portuondo, 257 F.3d 89, 104 (2d Cir.2001) (citation omitted). The natural corollary to this principle is that “[withheld, favorable evidence ..., in a context where the undisclosed material could have been used to render the evidence of guilt ambiguous[,] has a more significant impact than where the evidence of guilt is otherwise ample.” Spicer v. Roxbury Correctional Inst., 194 F.3d 547, 561 (4th Cir.1999) (quotation marks omitted). Mr. Case’s conviction rested on the eyewitness testimony of three teenagers, who recounted substantially inconsistent versions of the events surrounding Nancy Mitchell’s death. See Section 11(C)(1)(c), “Inconsistencies Between ‘Eyewitness’ Accounts,” infra. Aside from these eyewitnesses, the State’s witnesses offered little to no testimony connecting the defendant, Carl Case, to Nancy Mitchell’s murder. Moreover, the State offered scant, if any, physical evidence that anyone, let alone Mr. Case, raped Ms. Mitchell. The forensic and investigative witnesses testified as to the state of the victim’s body, whereas witnesses such as Ms. Mitchell’s mother and best friend testified as to her whereabouts before she disappeared. This testimony and evidence is described in further detail in Section 11(C)(1)(a), “Non-Eyewitness Testimony,” infra. Ultimately, the significant weaknesses in the State’s case render the jury’s guilty verdict “already questionable,” see Banks, 54 F.3d at 1518, bolstering the materiality of the suppressed Bobby Autry statement. i Defense Theory that Bobby Autry Was the True Perpetrator In evaluating the materiality of the suppressed statement, the Court must consider two general, and somewhat overlapping, aspects of the value of the evidence. The Court must assess the statement’s “utility to the defense as well as its potentially damaging impact on the prosecution’s case.” Banks, 54 F.3d at 1518 (citing Kyles, 514 U.S. at 434-40, 115 S.Ct. 1555). Respondent argues that the materiality analysis does not permit an inquiry into whether the evidence would have materially changed the defense strategy, trial preparation, or trial tactics. Doc. 36 at 4. He argues that Brady, Bagley, and Kyles control, yet fails to explain how an evaluation of whether the suppressed evidence would have materially changed the defense trial strategy would be in conflict with these cases. In fact, the entire tenor of the Supreme Court’s decision in Kyles compels the conclusion that an assessment of the materiality of any given piece of evidence requires a holistic assessment of the entire trial, including the defense’s trial strategy. Materiality is shown by demonstrating “that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555. The Supreme Court explained that the “touchstone of materiality” under Brady “is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. at 434, 115 S.Ct. 1555. In Kyles itself, the Supreme Court assessed how the suppressed evidence would have affected the proceedings as a whole, including in its analysis an assessment of how the suppressed evidence might have changed the defense’s trial strategy. 514 U.S. at 445-46, 115 S.Ct. 1555. The Court in Kyles cited Tenth Circuit case law for the proposition that Brady permits an analysis into how the defense might have utilized the suppressed evidence. Id. at 446, 115 S.Ct. 1555 (citing Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir.1986) for the proposition that a “common trial tactic of defense lawyers is to discredit the caliber of the investigation or the decision to charge the defendant, and [courts] may consider such use in assessing a possible Brady violation”). In Banks, the Tenth Circuit made clear that in assessing the materiality of any given piece of evidence, this Court must evaluate “its utility to the defense as well as its potentially damaging impact on the prosecution’s case.” 54 F.3d at 1518. In evaluating the evidence’s “utility to the defense,” Tenth Circuit case law clearly permits, and even requires, this Court to evaluate how the suppressed evidence would have affected the entire proceeding, including the defense’s trial strategy. See, e.g., Bowen, 799 F.2d at 613 (court may consider how suppressed evidence may have opened door to different trial tactics); Banks, 54 F.3d at 1519 (“[E]videnee in the hands of a competent defense attorney may be used to uncover other leads and defense theories. Thus, we may draw reasonable inferences as to what those other lines of defense may have been.”) (citation omitted); Trammell v. McKune, 485 F.3d 546, 551 (10th Cir.2007) (recognizing that suppressed evidence may have been used to support defense theory that another person committed the offense). The suppressed statement would have supplied the defense with a theory as to who was actually responsible for Nancy Mitchell’s murder. See Banks, 54 F.3d at 1519 (“[Suppressed] evidence in the hands of a competent defense attorney may be used to uncover other leads and defense theories. [The Court] may draw reasonable inferences as to what those other lines of defense may have been.”) (internal quotation omitted). Gary Mitchell, Mr. Case’s defense counsel, testified as follows at the state evidentiary hearing: Q: [C]an you tell us whether you had received [Bobby Autry’s February 3, 1982 statement) in discovery, either in a transcribed format or a taped format ... prior to Carl Case’s trial? A: ... In my heart of hearts, I’m convinced I didn’t have this. Because had I had it, I would have cross-examined differently and I would have used it, but I didn’t use it.... [T]he big thing in this case for me, one of the big things, was trying to find somebody that did this other than my client____[Bobby Autry’s admissions in this statement] showed that there was somebody else there that had wanted to have intercourse with this young lady at a different time and a different place.... [I]t would have been great if I could have cross-examined him about the fact that he actually had a sexual relationship with her, and obviously was frustrated by it because he made some, as I recall, some comment in here about the inability to conclude that relationship. Q: The information in this statement about he becoming mad at her and she becoming mad at him, was that information you had before you stood up to cross-examine Bobby Autry? A: No. Q: How can you be sure? A: Well, I shouldn’t say — well, if I had that information, I was incompetent, I’ll put it that way. And I may be a lot of things at times, but, by golly, if I have the information, I use it, and I just do not believe — I mean, I would have used it. I looked for everything I could to cross-examine these three — the three primary witnesses with. I would have used it. I would have hit him over the head with it, if I had had it. State Evid. Hr’g Tr. at 259-61 (emphasis added). Mr. Mitchell described Mr. Autry as one of three primary witnesses, whose testimony needed to be “destroy[ed]” at trial. Id. at 264. He further stated that he would have used the suppressed statement to impeach Mr. Autry, the importance of which was “critical.” Id. Without the suppressed statement, the defense was unable to cast any doubt on Mr. Autry’s statement that he once unsuccessfully “tried” to have sexual intercourse with the deceased victim in the case. In contrast to Mr. Case and his co-defendants, who the prosecution painted as “animals ... [who threw Nancy Mitchell] into the bushes like so much used garbage,” Trial Tr. at 1689, Mr. Autry came across as a gentleman who respected Ms. Mitchell’s wishes not to have sex with him. It is understandable that the defense attempted to avoid any further questioning on Mr. Autry’s “attempt” to have intercourse with Ms. Mitchell; any competent defense attorney in defense counsel’s position would not have further cross-examined Mr. Au-try out of fear that counsel would only solidify the chivalrous image the prosecution had begun to paint for the jury. However, had the prosecution disclosed Mr. Autry’s February 3rd statement to the defense, defense counsel could have demonstrated that Mr. Autry indeed not only “tried” to have sex with the victim, but actually succeeded in penetrating her, before she got angry and pushed him away. His consequent anger at her would have, at a minimum, suggested to the jury that he was not the gentleman that he initially purported to be. Had the prosecution disclosed Mr. Au-try’s suppressed statement to Mr. Case’s defense counsel, the defense first could have asked prosecution witnesses specific questions to lay a foundation for the possibility that Mr. Autry was in fact the killer, and also could have called additional witnesses to support this theory. At trial, the State’s expert, Dr. Greggory Kaufman, testified as to his “very, very rough estimate” that Ms. Mitchell had died three weeks prior to January 31, 1982. Trial Tr. at 724. However, on cross-examination, Dr. Kaufman stated that the death “might have occurred significantly longer [ago] than that.” Id. at 726. The last undisputed sighting of Ms. Mitchell occurred on or about December 21, 1981. See Worley Arrest Warrant ¶ 4 (“On 31 January 1982 Mary Helen Worley told police officers that Nancy Mitchell on or about 21 December 1981 was clad in the same clothing as that in which the body was found”). She was in Bobby Autry’s company on December 21st, and it is at least feasible, based on Dr. Kaufman’s limited testimony, that she died that very evening. However, defense counsel did not pursue this line of questioning with Dr. Kaufman, because the defense’s theory appeared to be that Ms. Mitchell in fact died after January 1, 1982. See Trial Tr. at 1351-56 (defense unsuccessfully moving for continuance to secure witness who would state that she saw Ms. Mitchell on January 6, 1982); see id. at 1313 & 1331-32 (defense witnesses Larry and Stella Lunsford testifying that they saw Ms. Mitchell on January 16, 1982). Similarly, on cross-examination of the State’s crime lab examiner, Lawrence Lee Renner, counsel for Mr. Case asked: “Was there any evidence taken from anybody else other than Curtis Worley and Curtis Worley’s car and Joe Brown?” Trial Tr. at 1045. Mr. Renner responded, “Bobby Lee Autry.” Id. Counsel in no way followed up on this reference to Mr. Autry. Bobby Autry admitted to sheriffs deputies that he and Nancy Mitchell had briefly had intercourse a few days before Christmas, and he further admitted that her refusal to continue to have sex with him made him mad. Had counsel had access to Mr. Autry’s February 3rd statement, he almost certainly would have further explored the possibility that Ms. Mitchell in fact died on the night that Mr. Autry penetrated her briefly and then got mad when she pushed him away. One minor but notable detail is that Ms. Mitchell’s best friend, Melanie Kirkes, testified that she last saw Ms. Mitchell on December 20, 1981. In support of its theory that Bobby Autry in fact murdered Ms. Mitchell prior to Christmas, the defense could have emphasized the fact that no one — not even Ms. Mitchell’s best friend — had seen her for over ten days before her alleged death, suggesting she actually died prior to January 1, 1982. The defense could have further elicited testimony from Dr. Kaufman as to what he believed to be the earliest possible date Ms. Mitchell could have died. The defense could have attempted to introduce the arrest warrant for Curtis Worley, which included the results of a-“preliminary autopsy” estimating that Ms. Mitchell died three to six weeks prior to January 30, 1982. See Worley Arrest Warrant ¶ 2. In fact, ostensibly because the defense theory was that Ms. Mitchell had in fact died later in January, the defense appears to have intentionally distracted from Dr. Kaufman’s concession that the death could have occurred significantly before January 1st, in an effort to focus on the possibility that she had died later than that: Q: ... [Y]ou were able to indicate how close you felt your estimate [that she had been dead for three weeks] was, within three to five days— three to five weeks, I believe was correct? A: I believe that’s probably — that’s probably the upper limits of reliability that I could place on my estimate. Q: Okay. So, when you say three weeks, assuming a week is seven days, twenty-one days, the maximum you are actually talking about is 26 days, is that right, from the date of the autopsy? A: Well, I think that limit of reliability applies more to the — more to the lower end of the spectrum of the time of death. I think death might have occurred perhaps- — perhaps a few days sooner- — or, a few days later than that. I think it might have occurred significantly longer than that, longer ago than that. Trial Tr. at 725-26. Dr. Kaufman’s testimony is ambiguous: he seems to agree, with some qualification, with defense counsel’s characterization of his estimate as “within three to five days — three to five weeks.” It is unclear from the transcript whether the doctor’s agreement is with “three to five days” or “three to five weeks.” Dr. Kaufman’s reference to “significantly ... longer ago than that” is vague, and the defense did not pursue this line of questioning. Had defense counsel had access to the suppressed tape, he almost certainly would have pursued the possibility that the death could have occurred as long ago as five weeks (or five weeks plus five days, depending on how one interprets Dr. Kaufman’s testimony) before the body was found. Given that the direct cause of death was not Ms. Mitchell’s physical injuries, but rather exposure to the elements, the defense could have questioned Dr. Kaufman regarding how many days might have passed between Ms. Mitchell’s killer abandoning her while she was still - alive, and her ultimate death. Armed with the suppressed statement which would lend support to a defense theory that Bobby Autry was the actual killer, the defense could have called Ricky or Mary Worley to testify that Ms. Mitchell was wearing the clothing in which her body was found on the night of this sexual encounter with Bobby Autry. Both Worleys gave statements on January 31, 1982, the day after Ms. Mitchell’s body was found. Ms. Worley stated that Ms. Mitchell went to the Worleys’ house the day after Curtis Worley paid for her to stay at the Travelodge. Police later established that this was on or around December 21, 1981. Worley Arrest Warrant ¶ 4. Ricky Worley stated that Ms. Mitchell left clothing at the Worleys’ house that day, but never returned to pick it up. According to Ms. Worley, Ms. Mitchell was at the Worley home with Curtis Worley, Mike Tweedy, Bobby Autry, and two other boys. Ms. Worley described what Ms. Mitchell was wearing that night: red pants and a black and white shirt with red trim, the same clothing in which her deceased body was found. Ricky Worley recalled that Ms. Mitchell had left alone with Mr. Autry; moreover, Mr. Autry himself stated in the suppressed statement that prior to his sexual encounter with Ms. Mitchell, he had picked her up from Ricky and Mary Worley’s house, and they left alone together. This testimony from Ricky and Mary Worley could have laid the groundwork for the defense theory that Mr. Autry was the actual killer. After beginning to lay this foundation, Mr. Case’s counsel could have used the suppressed statement to call into question Mr. Autry’s contention on direct examination that he had never had intercourse with Nancy Mitchell, and could have introduced his prior statement that he became “mad” and “teed off’ when Ms. Mitchell rebuffed him. To prove that Mr. Autry’s statement that he had never had sex with Ms. Mitchell was a lie, rather than simply an inaccurate choice of words, the defense could have introduced the following portion of the suppressed statement: Q: Do you remember ... [investigators] asking you if you had had, at any time, intercourse with Nancy Mitchell? A: Yeah. Q: And what did you tell him? A: I told him no, cause I, I didn’t know if she was raped at the time or what, and I didn’t want nobody to point the finger at me cause I didn’t do it. Tr. 2/3/82 Autry Statement at 14-15. Furthermore, the defense could have pointed to the facts that (1) no semen was found inside Ms. Mitchell nor on her underpants, and (2) she had no bruising on the back side of her body, to argue that the evidence was entirely consistent with a scenario in which Bobby Autry beat her in his car and dragged her off after she refused to let him complete the sexual act. The defense had a strong argument that the lack of bruising on the back of Ms. Mitchell’s body defied the State’s theory of a brutal gang rape on a rocky river bed. But without Mr. Autry’s suppressed statement, the defense could offer the jury no other specific explanation as to how she died. ii. The Statement’s Potential to Undermine the Jury’s Confidence in the Investigation In addition to creating a viable defense theory that Bobby Autry was Nancy Mitchell’s true killer, access to the suppressed statement would have allowed the defense to highlight the overall weaknesses in the State’s case. The physical evidence presented at trial was weak, and even the prosecutor himself acknowledged during his closing argument that the State’s eyewitnesses were not ideal witnesses. Trial Tr. at 1646 (referring to witnesses as “troubled young people”). The Tenth Circuit has recognized that it is a “common trial tactic ... to discredit the caliber of the investigation or the decision to charge the defendant,” and the Court “may consider suc