Hash v. Johnson (845 F. Supp. 2d 711, 2012)

MEMORANDUM OPINION

JAMES C. TURK, Senior District Judge.

This matter comes before the Court on Petitioner Michael Wayne Hash’s (“Hash” or “Petitioner”) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss. Hash alleges that he has been imprisoned in violation of his right to due process because the Prosecution and the Culpeper authorities concealed their arrangement with prosecution witness Paul Carter (“Carter”), and more generally, engaged in a pattern of nondisclosure and deception during the prosecution of Hash’s case. Hash further alleges that his trial counsel rendered constitutionally ineffective assistance of counsel by failing to investigate Carter and failing to present an alternate theory of the crime at trial. For the reasons stated herein, Hash’s request for habeas relief with respect to each of his claims is GRANTED.

I. Background and Procedural History

The history of this case is extensive. Because the analysis turns on specific statements made during trial and testimony from the state and federal habeas proceedings, the Court begins with a higher level overview of the case. More specific details and verbatim statements are reserved for presentation in the appropriate analysis sections. See infra Sections III and IV.

A. Procedural History

On February 9, 2001, a jury convicted Hash of capital murder of Thelma B. Scroggins (“Scroggins”). Petitioner was sentenced to life imprisonment without the possibility of parole. At the time of Scrog-gins’ murder in July 1996, Hash was fifteen years old. Hash was not charged with the murder until 2000, when he was nineteen years old. Prior to Hash’s trial, Hash’s co-defendant, Jason Kloby (“Kloby”), was tried and acquitted of Scroggins’ murder.

Hash appealed his conviction in the Circuit Court of Culpeper County (“Culpeper Circuit Court”) to the Court of Appeals of Virginia, which affirmed the trial court’s judgment in an unpublished opinion. Hash v. Commonwealth, No. 1290-01-4, 2002 WL 2004853 (Va.Ct.App. Sept. 3, 2002). The Supreme Court of Virginia denied Hash’s petition for appeal and petition for rehearing.

Thereafter, Hash filed a petition for habeas corpus in the Culpeper Circuit Court. In that petition he alleged, inter alia, that the Prosecution and the Culpeper authorities had violated his rights by (1) failing to disclose records of correspondence or discussions with Carter about Carter’s expectation of a sentence reduction in exchange for his testimony against Hash; (2) failing to disclose records of Carter’s history as an informant; (3) using Carter’s testimony when the Commonwealth knew or should have known that such testimony was perjured; (4) suggesting to the jury that Carter could not reduce his federal sentence by assisting prosecutors in a state court case; and (5) failing to disclose deals with Weakley regarding his testimony in Hash’s case and his expectation of leniency. Hash also alleged that his trial counsel were constitutionally deficient for (1) failing to investigate evidence of other suspects in the case, (2) failing to discover letters written by Carter to a federal district court judge and others seeking assistance in obtaining a sentence reduction in his federal case, and (3) failing to present evidence that Hash was moved from Culpeper to the Albemarle-Charlottesville Regional Jail in order to expose Hash to Carter.

In its unpublished letter opinion, the Culpeper Circuit Court denied all of Hash’s claims. First, the Culpeper Circuit Court held that although trial counsel’s performance was deficient with regard to counsel’s failure to investigate Carter, Hash had failed to prove prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (State Habeas Cir. Ct. Op. at 14,16). Second, the Culpeper Circuit Court found that Petitioner had not proven prejudice with regard to his trial counsel’s failure to present evidence that Hash was relocated from Culpeper to the Albemarle-Charlottesville Regional Jail for the purpose of being exposed to known prison informant, Carter. (Id. at 16). Third, with regard to Hash’s trial counsel’s failure to present an alternate theory of the crime, the Culpeper Circuit Court held that the investigation conducted by Hash’s trial counsel was reasonable and their resulting trial strategy was reasonable. (Id. at 18-19). Finally, the Culpeper Circuit Court held that there was insufficient proof of misconduct with regard to the Commonwealth’s dealings with Carter. (Id. at 18).

Hash appealed the Culpeper Circuit Court’s judgment to the Supreme Court of Virginia. The Supreme Court of Virginia’s review was limited to the following assignments of error:

1. The circuit court erred in denying habeas relief on Claim A regarding “snitch” testimony from Paul Carter and ruling that, although counsel’s performance was constitutionally deficient, there was no reasonable probability of a different result.

2. The court erred in failing to grant habeas relief specifically on Claim A(4), when the prosecution used the perjured testimony of Paul Carter.

Hash, 686 S.E.2d at 212. As to both assignments of error, the Supreme Court of Virginia denied Hash’s petition and affirmed the Culpeper Circuit Court. Specifically, the Supreme Court of Virginia held that Hash had “not met the burden of showing a reasonable probability that, but for counsel’s error in failing to investigate the federal file and use the letters to further impeach Carter, the trial would have had a different result.” Id. at 216. Regarding the second assignment of error, the Supreme Court of Virginia held that because Hash failed to present any evidence of a “pre-arranged agreement with the federal prosecutor to make a Rule 35(b) motion ... Hash has failed to establish that Carter’s testimony was false” and, consequently, “there can be no way to establish that the prosecution knew of any alleged falsity.” Id. at 217.

On April 15, 2010, Hash timely filed a federal petition for writ of habeas corpus before this Court, pursuant to 28 U.S.C. § 2254. On July 2, 2010, Hash filed an amended petition. The claims set forth in Petitioner’s amended petition are as follows:

Claim IA: Petitioner’s trial counsel rendered constitutionally ineffective assistance of counsel when they failed to investigate and impeach the Commonwealth’s key witness, Paul Carter, a jailhouse snitch;

Claim IB: Petitioner’s trial counsel rendered constitutionally ineffective assistance of counsel when they failed to present evidence rebutting the Commonwealth’s multi-perpetrator theory of the case and evidence incriminating an alternative suspect;

Claim IIA: The Commonwealth violated Petitioner’s due process rights by concealing offers of favorable treatment to multiple prosecution witnesses; and

Claim IIB: The Commonwealth violated Petitioner’s due process rights through the Culpeper Sheriffs Department’s improper and offensive investigation.

(Dkt. No. 12-2). Subsequently, the Court granted Petitioner’s unopposed motion for ballistics testing, (Dkt. No. 28), and granted Petitioner’s oral motion for further discovery, (Dkt. No. 34). Both parties filed dispositive motions and the Court heard argument on January 24, 2012. Prior to oral argument, Petitioner advised the Court that Respondent had conceded Hash’s ability to show cause and prejudice with regard to Claim IIA. (Dkt. No. 53).

B. Hash’s Criminal Trial

At trial, Hash was represented by court appointed counsel, Richard Davis (“Davis”) and Michael T. Hemenway (“Hemenway”). Hash was arrested in May 2000, nearly four years after Scroggins’ July 1996 murder. The first deputy assigned to investigate the case, Investigator David Carter (“Investigator Carter”), concluded that a single assailant had committed the crime, based on the crime scene evidence. (State Habeas H. Tr. at 250, 255). One of the suspects developed was Billy Scott (“Scott”), but the case went cold. (Id. at 258). In November 1999, a new Sheriff was elected and he revisited the case. (Jenkins Aff. at ¶ 6). Investigator Scott Jenkins (“Investigator Jenkins”) and Investigator James Mack (“Investigator Mack”) were the new deputies assigned to the case. They were responsible for developing Hash as a suspect.

During trial the Prosecution presented evidence that Scroggins was found dead in her home, having suffered four gunshot wounds to the head. Three of the four shots were to the left side of Scroggins’ head and one was to the back of her head. Investigator Jenkins testified that the only DNA found at the scene belonged to the victim and that although five fingerprints were recovered, no match was ever made. Further, no firearm was recovered at the crime scene that matched the .22 caliber bullets recovered from Scroggins’ body.

The Prosecution had no physical evidence connecting Hash to the Scroggins murder. As a result, the Prosecution relied on the testimony of three key witnesses to prove their case: “an eyewitness,” Eric Weakley (‘Weakley”); Hash’s cousin, Alesia Shelton (“Shelton”); and Carter, a known prison informant, to whom Hash had allegedly confessed the crime.

Weakley testified that he, Kloby, and Hash attacked Scroggins and that Hash shot Scroggins “[tjwiee in the side of the head ... [t]he left side.” (Trial Tr. at 595). Weakley also stated that Kloby shot her in approximately the same place and then fired the last shot in the back of her head. (Id. at 596-97).

Shelton testified that on the night Scroggins was murdered she overheard Hash and Kloby at Hash’s house talking about Scroggins and how “they were going to do it tonight” and that Hash said “they should make her suffer.” (Id. at 542). Shelton also testified that she saw “the blue car from [Hash’s] house” parked near Scroggins’ house. (Id. at 544). Finally, Shelton testified that on a later occasion she, Kloby, and Hash rode their bicycles to a church near Scroggins’ house and at that time Kloby told her how he and Hash had entered Scroggins’ house and shot her. (Id. at 808-09). Shelton stated that when Kloby said this she looked at Hash and he “nodded his head and said yes-yeah.” (Id. at 810).

Carter testified that while he was incarcerated in the Albemarle-Charlottesville Regional Jail Hash was “the only white dude in our cell block.” (Id. at 726). Carter stated that Hash confessed to the murder, saying he “shot the lady twice,” used a .22 caliber gun, and that he “got away in a vehicle, her truck or whatever she had, the vehicle.... ” (Id. at 727-28). Carter further testified that Hash said he had committed the murder with two other individuais and that his cousin “was trying to tell on him what happened about the whole case and everything.” (Id. at 728). Regarding the timing of Hash’s confession, Carter stated that Hash confessed to him in “April, May, around that area” of 2000. (Id. at 730). The evidence showed that on May 24, 2000, Hash was transferred to the Albemarle-Charlottesville Regional Jail and that Carter first contacted Investigators Jenkins and Mack on June 26, 2000.

On cross-examination Hash’s trial counsel elicited inconsistencies in Carter’s statement regarding the number of times Hash had shot Scroggins. However, when asked if he had assisted government on prior occasions, Carter testified that he had only done so on one prior occasion. (Id. at 736). Carter was not impeached on this point; despite the fact that had Hash’s trial counsel investigated they would have found evidence that Carter was a prolific informant. Regarding his testimony at Hash’s trial, Carter stated that although he had asked the Commonwealth’s Investigators, to whom he had spoken about Hash’s confession, to speak to the U.S. Attorney on his behalf, the Investigators “didn’t talk to him.” (Id. at 734). When asked if the purpose of his conversation with the Investigators was to potentially reduce his sentence, Carter responded “Somewhat, yes....” (Id. at 737). Nevertheless, on re-direct the Prosecutor was able to rehabilitate Carter’s testimony with Carter’s answer that it was his understanding that his testimony in the state court proceedings against Hash did not have any impact on his federal sentence. (Id. at 740). On re-cross, Hash’s counsel continued unsuccessfully to impeach Carter’s testimony. When asked whether a substantial assistance or Rule 35(b) motion simply required “helping the prosecutor with the case,” Carter answered “Yeah, that’s a federal case. It don’t say nothing about state case.” (Id. at 741).

The Prosecution’s case also relied on Hash’s statements to the police and his own testimony at trial. Specifically, Hash stated that in the beginning to middle part of 1995 he talked with Kloby and Weakley about robbing someone in the area. (Id. at 1153). Hash explained that Kloby and Weakley wanted to rob somebody who would not put up much of a fight. (Id. at 1153). On cross-examination Hash admitted that he had “assumed” Kloby and Weakley were talking about an old lady. (Id. at 1153). Hash also testified that Kloby mentioned the robbery a second time in a telephone conversation, and a final time “several months down the road to a year later in the mall.” (Id. at 1154). Hash denied any participation in the murder and testified that he had told Kloby he did not “want to have anything to do with it.” (Id.). At no point during the police interrogation or during his trial did Hash admit to planning to murder anyone.

Hash’s defense at trial included testimony by 18 witnesses. Hash’s counsel emphasized the contradictory nature of Shelton’s and Weakley’s testimony and Hash testified in his own defense. When asked if he shoot or had anything to do with Scroggins’ murder Hash answered “Absolutely not.” (Id. at 1132). When asked “at any time did you make a statement or an admission to this Mr. Paul Carter that you shot Mrs. Scroggins or killed her of anything like that?” Hash answered “No, sir.” (Id. at 1141).

Hash’s counsel also put forward an alibi defense, supported by the testimony of several witnesses. Hash testified he was at the home of his best friend, William Blithe III (“Billy”), ■ at the time of the Scroggins’ murder. (Id. at 1130). However, Hash also testified that he had initially told police that he was with Beverly Rosenfeld, his girlfriend around the timé of the Scroggins murder. (Id. at 1136). Hash explained that he had told police that he was with Rosenfeld because when first asked “that was the best I could recollect of where I was during that period of that summer.” (Id. at 1143). He further explained that he had told investigators about being at Billy’s house “the second time the investigators talked to [him]” but that was “maybe three, three to four weeks after I was first interviewed” and after he had spoken with Billy. (Id. at 1149-50). Hash’s testimony was corroborated by the testimony of his parents (Id. at 843^4, 846-48,1072,1074-75).

Hash’s trial counsel called William L. Blithe, Billy’s father, and Sieglinde Blithe, Billy’s mother, to corroborate Hash’s alibi. Billy Blithe was called as a rebuttal witness for the Prosecution. Each testified that Hash was at their home in Mitchell, Virginia, helping Billy fix a broken lawn tractor. (Id. at 872, 879-880). William Blithe was cross-examined as to his ability to recall details of the weekend. (Id. at 876-77). Sieglinde Blithe was also cross-examined as to her ability to recall details of the weekend and as to her ability to recall that particular weekend out of the many her son and Hash had spent together. (Id. at 882-84, 885). Billy Blithe, when questioned by the Prosecution, testified that he initially could not recall if he and Hash had worked on the tractor on the weekend of the 13th or the 17th of July. (Id. at 1217). On cross-examination, however, he testified that Hash was at his house the weekend of the Scroggins murder. (Id. at 1222).

C. Hash’s State Habeas Proceedings

In his state habeas proceedings Hash raised prosecutorial misconduct claims and several ineffective assistance of counsel claims. After allowing Petitioner to conduct some discovery, the Culpeper Circuit Court held an evidentiary hearing on October 16 and 17, 2007. A significant question at this hearing was the relative importance and credibility of Carter’s testimony against Hash. Both parties stipulated to Hash’s exhibits, which included copies of the letters that Carter had written to Judge Michael, a federal district court judge, and other individuals concerning Carter’s sentence reduction. In total, Carter wrote 25 letters to Judge Michael and others, all concerning his “35(b) motion” to have his federal sentence reduced in light of his testimony in Hash’s trial. Five of those letters were written before Carter testified at Hash’s February 2001 trial.

Investigators Jenkins and Mack testified at the hearing. When asked if Carter had asked for a sentence reduction in exchange for his testimony against Hash, Investigator Jenkins stated that Carter “wanted us to speak with the prosecutor handling his case to speak on his behalf’ but that Carter “was told we can’t have anything to do with affecting his — his case that he was facing.” (State Habeas H. Tr. at 37). Investigator Jenkins also testified that he was initially skeptical of Carter’s testimony, but became less skeptical when he learned Carter’s statement referenced the same caliber weapon as the weapon in the Scroggins murder. (Id. at 42). However, when questioned about the exact contents of Carter’s statement, the evidence showed Carter stated that the murder weapon was a .22 caliber handgun, when in fact the ballistics expert concluded the weapon was most likely a .22 caliber rifle. (Trial Tr. at 44).

Investigator Mack’s testimony went to the relative importance of Carter’s testimony. In response to questions about the testimony he gave at Carter’s Rule 35(b) hearing, Investigator Mack stated that Carter was a “substantial witness” and agreed that once Carter became a witness it “change[d] the way he looked at the case.” (State Habeas H. Tr. at 73-74). Investigator Mack further stated that the case was “iffy” with just Shelton and Weakley as witnesses. (Id.). The transcript of the Rule 35(b) hearing, admitted as an exhibit during the evidentiary hearing, showed that Carter was originally sentenced to 180 months, although he initially faced the possibility of a maximum sentence of life in prison. (Carter 35(b) H. Tr. at 18). The transcript further showed that Judge Michael granted the Rule 35(b) motion and Carter’s sentence was reduced to 60 months, (Id. at 20), which was approximately the amount of time Carter had served, (Id. at 13).

Hash’s trial counsel also testified at the hearing. Hemenway was responsible for the investigation of Carter. He testified that he had information about Carter before trial, including the fact that Carter was “a big drug dealer and that he had cooperated before and that he had reduced his sentence based on that cooperation.” (State Habeas H. Tr. at 214). Hemenway admitted that he did not obtain Carter’s federal file prior to Hash’s case, despite it being a “good idea” to do so, and that the letters in the file were “potentially useful.” (Id. at 178-79). However, Hemenway did not believe that in cross-examining Carter he needed to use the letters, because Carter talked freely about his § 5K.1.1 motion and his Rule 35(b) substantial assistance motion and Carter “certainly didn’t deny it that he had reduced his sentence.” (Id. at 215). Davis also testified about the importance of the letters in Carter’s federal file. Davis stated that he was aware that Hash was involved in a federal drug case. He also stated that “[l]ooking at [Carter’s] file you could learn some things perhaps” and admitted that having Carter’s letters would have been “very helpful.” (Id. at 105).

Nonetheless, Davis did not believe Carter’s testimony was the only important evidence in the Commonwealth’s case, but his opinion as to the most important evidence in the case vacillated. Davis explained that the reason he discounted the testimony of Carter was because its “too easy to lie and, you know, maybe that just comes from my perspective as a lawyer who deals with people like that.” (Id. at 149). Davis stated that “the biggest piece that we thought that was different from our case and Kloby’s case was not Mr. Carter but Mr. Hash’s statement.” (Id. at 137). Specifically, Davis expressed concern about Hash’s statement to the police because it involved “[p]lanning with the other two young men to go out and rob old people.” (Id.). Davis also testified, somewhat contradicting his prior testimony, that Weakley was the “biggest” witness “because Weakley [was] the one that says I was there and I saw this happen and I saw who did what.” (Id. at 142). Hemenway testified that he didn’t “think [the Commonwealth] had a particularly strong case” and that the case “was ratified with having Mr. Carter come forward.” (Id. at 139).

D. New Evidence Uncovered During Federal Habeas Proceeding

This Court allowed Hash’s counsel to conduct additional discovery during the federal habeas proceedings. The new evidence is summarized below.

1. Carter’s Expectations Regarding his Testimony in the Hash Case

Hash has presented evidence that Carter testified falsely at trial when he stated that he expected “nothing” in exchange for his testimony. Commonwealth’s Attorney Gary Close (“Commonwealth’s Attorney Close”) now concedes that this statement was not truthful. (Close Dep. Tr. at 102). See also Va. Sup. Ct. Oral Arg. Tr. at 27-28. Commonwealth’s Attorney Close also concedes that the statement he made in closing argument regarding whether there was a deal for Carter’s testimony was misleading because, although he did not know at the time, Carter’s federal sentence was connected to his testimony against Hash. (Close Dep. Tr. at 119-20). Furthermore, Investigator Jenkins has admitted there was a deal with Carter for his testimony prior to Hash’s trial. At the State Habeas hearing in October 2007, Investigator Jenkins testified that “[Paul Carter] was told we can’t have anything to do with affecting his ... case.” (State Habeas H. Tr. at 37). In his federal deposition, Investigator Jenkins reviewed the letter he wrote to Carter, which states, “if I’m ever asked by the U.S. Attorney in your case, I will tell him what you did” and testified that “sounds like what I would have said.” (Jenkins 3/12/01 letter to Carter); (Jenkins Dep. Tr. at 140). Also, when shown Carter’s statement that “Scott Jenkins has agreed to talk to the prosecutor if asked for my sake, Jenkins said, “I don’t think that would have been a lie. I think that could have been said, yes.” (Jenkins Dep. Tr. at 145).

2. Hash’s Transfer to the Albemarle-Charlottesville Regional Jail was Orchestrated

Prior to the federal habeas proceedings, Culpeper authorities denied any suggestion that Hash was transferred to the Albemarle-Charlottesville Regional Jail to put him in contact with known prison informant, Carter. The evidence shows that Hash was in the Regional Jail for only two nights and spent the second night in a cell block with Carter. (Shifflett Aff. at ¶ 5, 11). Sheriff Lee Hart (“Sherriff Hart”) admitted in his affidavit in connection with these proceedings that Hash was “transferred from the Culpeper County jail to a correctional facility in the Charlottesville area ... and it was [his] understanding the purpose was to obtain information by the informant from Hash.” (Hart Aff. at ¶ 5). Sheriff Hart further stated that he was not comfortable authorizing the transfer and told the investigator to “seek authorization from Commonwealth’s Attorney Gary Close before said transfer.” (Hart Aff. at ¶ 6). Subsequently, after reviewing Sheriff Hart’s affidavit, Commonwealth’s Attorney Close has admitted that Hash was transferred for the purpose of exposing him to the known informant, Carter. (Close Errata) (“At some point in time, I assume prior to the transfer, I had a conversation with Bruce Cave wherein he told me that the Sheriffs Office was thinking about moving Hash to a jail where there was a snitch.”).

3. The Prosecution Failed to Disclose the Deal with Weakley for His Testimony

The Prosecution failed to disclose a deal with Weakley made for his testimony against Hash. A Virginia State Police report filed by Agent Wayne Carwile (“Agent Carwile”) on June 15, 2000, indicates that “Eric Weakley’s attorney has been in negotiation with the Commonwealth’s Attorney to make a deal whereby Weakley would testify against Hash and Kloby.” (Carwile 6/15/00 Report at 2). However, this information was not disclosed until July 28, 2011.

4. Weakley Has Recanted His Statements Implicating Hash

Weakley’s sworn affidavit states that he has no personal knowledge of the murder of Scroggins and no reason to believe Hash had anything to do with it. (Weakley Aff. at ¶ 2). Further, Weakley states that all the details of the Scroggins murder were provided to him by the Culpeper authorities. (Weakley Aff. at ¶ 5). In his federal deposition, Investigator Mack testified that he and Investigator Jenkins “may have” shown Eric Weakley pictures from the crime scene. (Mack Dep. Tr. at 69.) Moreover, Investigator Jenkins has now stated that he did not want to arrest Hash based on Shelton and Weakley’s statements because “both witnesses lied numerous times in discussions with law enforcement officials---- To this day, I do not believe the story they told — that three teenage boys murdered Thelma Scrog-gins — is plausible.” (Jenkins Aff. at ¶ 6).

5. The Prosecution Failed to Disclose Weakley and Shelton’s Polygraph Results

Both Weakley and Shelton failed polygraph examinations regarding their statements implicating Hash. These exams were not disclosed to Hash. Commonwealth’s Attorney Close admits Weakley’s results were exculpatory. (Close Dep. Tr. at 30). According to Agent Carwile, a certified polygraph examiner, Shelton’s test results showed that she was deceptive on every single question asked about her statement implicating Hash. Agent Car-wile commented that “anybody that failed the examination to this extent wouldn’t be a very credible witness in my opinion.” (Carwile Dep. Tr. at 55). Investigator Mack said that in light of Shelton’s failed polygraph, it would have been appropriate to “re-evaluate everything [she] ever said.” (Mack Dep. Tr. at 51).

II. Standards of Review

A. Summary Judgment Standard

Summary judgment may be granted only when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). More than an opposing narrative is required to defeat a motion for summary judgment because “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). An otherwise “properly supported motion for summary judgment” will not be defeated by the existence of merely any factual dispute, no matter how minor; rather, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To withstand a summary judgment motion, the non-moving party must produce competent evidence sufficient to reveal the existence of a genuine issue of material fact for trial. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.2002). Neither conclusory allegations nor the production of a “mere scintilla of evidence” in support of a nonmoving party’s case suffices to forestall summary judgment. Id. In cases where “the result is obvious,” based on the pleadings, summary judgment should be granted. Bostick v. Stevenson, 589 F.3d. 160, 165 (4th Cir.2009).

B. AEDPA’s Deferential Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), habeas relief is available only if a petitioner’s conviction was obtained “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254. Specifically, the writ may not be granted “with respect to any claim that was adjudicated on the merits” in state court unless the state court adjudication (1). “resulted in a decision that was contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(2).

The Supreme Court has explained that “contrary to” and “unreasonable application” have different meanings in the context of § 2254. A state court decision is “contrary to” clearly established federal law if it “applies a rule that contradicts” the governing federal law as set forth by the Supreme Court’s cases, Williams v. Taylor, 529 U.S. 362, 404-5, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), or if the state court “decides a case differently than [the Supreme Court has] done on a set of materially indistinguishable facts,” Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Whereas, a state court decision is an “unreasonable application” of federal law if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case ... or is unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled.” Conaway v. Polk, 453 F.3d 567, 581 (4th Cir.2006). See also Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“Section 2254(d)(1) permits a federal court to grant habeas relief based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.”).

A federal district court sitting in review of a state court judgment must afford the state court determination deference. See 28 U.S.C. § 2254(d). The Supreme Court had explained that § 2254(d) contains a “highly deferential standard for evaluating state-court rulings” that “demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (internal quotation marks omitted). Indeed, in the case of an “unreasonable application” the Supreme Court has explained that because an “application must be ‘objectively unreasonable’ ” before a court may grant habeas relief, “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings.’ ” Renico v. Lett, — U.S.—, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010); Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (noting “unreasonable application” is not synonymous with error because “[t]he question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold”).

C. Statute of Limitations

Under 28 U.S.C. § 2244(d), a petitioner has one year to file his petition for a writ of habeas corpus. Claims filed after that date, in amended petitions are barred unless they relate back to the claims in the original petition. Gray v. Branker, 529 F.3d 220, 241 (4th Cir.2008). Claims are deemed to relate back if the claims “are tied to a common core of operative facts.” Mayle v. Felix, 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). However, “[a]n amended habeas petition ... does not relate back ... when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Id. at 650, 125 S.Ct. 2562.

D. Evidence Properly Considered on Federal Habeas Review

The U.S. Supreme Court’s decision in Cullen v. Pinholster addresses the circumstances under which a federal district court may consider evidence not presented to the state habeas court. — U.S.-, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (stating the Court granted certiorari to resolve “whether review under § 2254(d)(1) permits consideration of evidence introduced in an evidentiary hearing before the federal habeas court”). Pinholster’s holding limits review under § 2254(d)(1) “to the record that was before the state court that adjudicated the claim on the merits” because the language of the statute is “backward-looking” and “requires an examination of the state-court decision at the time it was made.” 131 S.Ct. at 1398. See also Elmore v. Ozmint, 661 F.3d 783, 850 (4th Cir.2011) (“[Ojur § 2254(d)(1) review is generally confined to the record that was before the state [ ] court.”).

Nonetheless, there are circumstances under which a petitioner is allowed to present new evidence in federal court. First, if the claim was not adjudicated on the merits, a federal court assesses the claim de novo. Pinholster, 131 S.Ct. at 1401 (limiting Court’s reasoning to claims under § 2254(d)); Monroe v. Angelone, 323 F.3d 286, 297 (4th Cir.2003) (“[Wjhere a state court has not considered a properly preserved claim on its merits, a federal court must assess the claim de novo.”). Furthermore, if the district court finds that the state court applied the wrong law or unreasonably applied federal law, the district court may consider the full record when evaluating the petitioner’s constitutional claims. Pinholster, 131 S.Ct. at 1401. However, in determining whether the wrong law was applied or an unreasonable application of federal law took place, the federal district court is limited to the evidence before the state habeas court. Pinholster, 131 S.Ct. at 1400 (“[Ejvidence introduced in federal court has no bearing on § 2254(d)(1) review.”); Jackson v. Kelly, 650 F.3d 477, 492 (4th Cir.2011) (“In other words, when a habeas petitioner’s claim has been adjudicated on the merits in state court, a federal court is precluded from supplementing the record with facts adduced for the first time at a federal evidentiary hearing.”).

Second, if a petitioner is attempting to show cause and prejudice or actual innocence to excuse procedural default, the district court must consider all the evidence before it in determining whether the applicable standard has been satisfied. House v. Bell, 547 U.S. 518, 537-38, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). Once cause and prejudice or actual innocence is shown, the court reviews the claim de novo. Williams, 529 U.S. at 433, 120 S.Ct. 1479.

Finally, Petitioner argues that Pinholster left open the possibility that new evidence, which comes to light during federal proceedings, can transform a claim previously adjudicated on the merits by the state court to such an extent that it is no longer fair to say the state court reached the merits. To support this assertion, Petitioner relies on Justice Sotomayor’s dissent in which she poses the following hypothetical and states that under such circumstances the new evidence should be considered:

Consider, for example, a petitioner who diligently attempted in state court to develop the factual basis of a claim that prosecutors withheld exculpatory witness statements in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state court denied relief on the ground that the withheld evidence then known did not rise to the level of materiality required under Brady. Before the time for filing a federal habeas petition has expired, however, a state court orders the State to disclose additional documents the petitioner had timely requested under the State’s public records Act. The disclosed documents reveal that the State withheld other exculpatory witness statements, but state law would not permit the petitioner to present the new evidence in a successive petition.

Pinholster, 131 S.Ct. at 1417-18 (Sotomayor, J., dissenting). Petitioner argues that although this hypothetical is found in the dissent, the majority’s opinion does not preclude its application. See Pinholster, 131 S.Ct. at 1401, 1401 n. 10 (“[Sjtate prisoners may sometimes submit new evidence in federal court.”). Indeed, quite to the contrary, the majority acknowledges the possibility of an exception, but reserves the issue of what factual circumstances are necessary to trigger it for a future holding. See Pinholster 131 S.Ct. at 1401 n. 10 (“Justice Sotomayor’s hypothetical involving new evidence of withheld exculpatory witness statements ... may well present a new claim.”).

While the Court believes this exception is sensible because nothing in the majority’s reasoning suggests that it intended to limit a diligent petitioner’s ability to present evidence that stemmed from the State’s failure to disclose potentially exculpatory material this Court need not address the question because its rulings herein do not depend on this exception for new claims. James v. Schriro, 659 F.3d 855, 876 (9th Cir.2011) (“Pinholster acknowledged that a habeas petitioner who raises a claim that was not adjudicated on the merits in state court, and is therefore not subject to § 2254(d), may present new evidence in federal court ....”) (citing Pinholster, 131 S.Ct. at 1401).

E. Exhaustion

Generally, a federal court may only grant habeas relief for exhausted claims — that is those claims that have been presented in state court before raising them in federal court O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Vinson v. True, 436 F.3d 412, 417 (4th Cir.2006). Claims not presented are generally procedurally defaulted. Wolfe v. Johnson, 565 F.3d 140, 160 (4th Cir.2009). To be exhausted the legal claim need not be articulated or framed in state court in the same way as it is in the federal petition. Picard v. Connor, 404 U.S. 270, 277-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (noting exhaustion requires that “the substance of a federal habeas corpus claim [is] first presented to the state courts” and that substance may be the same “despite variations in the legal theory or factual allegations urged” in support of the claim); Jones v. Sussex I State Prison, 591 F.3d 707, 713-14 (4th Cir.2010) (claim exhausted where petitioner cites a case and fact pattern in support of his claim in state court); Lenz v. Washington, 444 F.3d 295, 302 (4th Cir.2006) (courts should not “allow any semantic confusion to bar all federal review of petitioner’s constitutional claims”).

However, a petitioner may present procedurally defaulted claims in federal court if the petitioner can establish “cause and prejudice” for his or her failure to exhaust a claim or that his or her confinement constitutes a “miscarriage of justice.” Wolfe, 565 F.3d at 160. A petitioner can show cause by demonstrating “some objective factor external to the defense [that] impeded counsel’s efforts to comply with the State’s procedural rule ... [including] that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by officials made compliance impracticable.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (internal quotation marks and citations omitted). To make a showing of prejudice the petitioner must demonstrate that the complained of conduct caused real harm to the petitioner. See Wainwright v. Sykes, 433 U.S. 72, 84-85, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

A petitioner demonstrates a “miscarriage of justice,” through “[a] proper showing of actual innocence.” Wolfe, 565 F.3d at 160 (citing House, 547 U.S. at 536-37, 126 S.Ct. 2064). A petitioner is “actually innocent” if “it is more likely than not that no reasonable juror would have convicted [the petitioner] in light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 827, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The purpose of the actual innocence exception is “to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case.” Id. at 324, 115 S.Ct. 851. Indeed, this exception to procedural default reflects society’s “fundamental value determination ... that it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). Because this standard “focus[es] the inquiry on actual innocence ... the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on ‘actual innocence’ allows the reviewing tribunal to consider the probative force of relevant evidence that was either excluded of unavailable at trial.” Schlup, 513 U.S. at 327-28, 115 S.Ct. 851. Finally, a “petitioner’s showing of innocence is not insufficient solely because the trial record contained sufficient evidence to support the jury’s verdict.” Id. at 331,115 S.Ct. 851.

III. Procedural Bars: Exhaustion and Timeliness

Before addressing the merits of each claim, the Court must address the exhaustion and timeliness arguments made by the parties. The Respondent argues that Claims IB and IIB have not been fully exhausted and that Claim IIB is not timely. (Dkt. No. 45 at ¶¶ 8, 11, 12). Petitioner argues, in that alternative, that the claims are appropriately exhausted and timely or that Petitioner’s evidence, including the new evidence from this proceeding, satisfies the actual innocence exception to procedural default. The Court considers both arguments and finds that Petitioner’s Claim IB is fully exhausted and Claim IIB is partially exhausted and partially timely. Additionally, Petitioner has satisfied the actual innocence exception to procedural default.

A. Actual Innocence

Hash argues that he satisfies Schlup’s actual innocence exception to procedural default based on an evaluation of all the evidence before this Court. In particular, Petitioner points to the evidence of (1) widespread police and prosecutorial misconduct, including the fact that Shelton and Weakley’s failed polygraphs were not disclosed to Hash’s trial counsel, (2) Weakley’s recantation of his trial testimony against Hash, and (3) the evidence that Scott committed the crime. (Dkt. No. 49 at 28). Under Schlup, a showing of actual innocence requires “new reliable evidence ... that was not presented at trial” sufficient such that “it is more likely than not that no reasonable juror would have convicted [the petitioner] in light of the new evidence.” 513 U.S. at 324, 327, 115 S.Ct. 851. Furthermore, “Schlup makes plain that the habeas court must consider ‘all the evidence,’ old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under “rules of admissibility that would govern at trial.” House, 547 U.S. at 538, 126 S.Ct. 2064 (citing Schlup, 513 U.S. at 327-28, 115 S.Ct. 851 quoting Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142,160 (1970)).

First, Hash has provided significant evidence of the extent of the police and prosecutorial misconduct that took place during the investigation and prosecution of his case. Specifically, Hash has come forward with evidence showing (1) he was transferred to the Albemarle-Charlottesville Regional Jail to be exposed to a known prison informant, Carter, which runs counter to the explanation offered throughout the state habeas proceedings; (2) Investigator Jenkins promised to speak to the U.S. Attorney’s office regarding how Carter’s testimony was beneficial in the Hash case, and to speak at a 35(b) hearing if requested to do so, but the Culpeper authorities denied the existence of any such agreement; (3) Carter was allowed to testify falsely at Hash’s trial that he expected no benefit from his testimony; (4) Letters written by Carter to the Culpeper officials were never produced to Hash’s trial counsel; (5) reports of polygraph examinations given to Weakley and Shelton were never produced to Hash’s trial counsel; (6) the Prosecution concealed negotiations with Weakley regarding a plea agreement in exchange for his testimony; (7) Culpeper investigators provided Weakley with access to crime scene information and guided his answers to the investigator’s questions; (8) Investigator Jenkins testified falsely at Hash’s trial regarding whether Weakley’s interviews were recorded; (9) Investigator Carter saw a weapon matching the caliber weapon used to murder Scroggins at the home of another suspect, Scott, but failed to take custody of the weapon and run a ballistics report.

Indeed, Respondent has generally admitted that “[t]here are a number of improprieties in this case ... no question about it.” (Fed. Dist. Ct. H. at 30). Furthermore, Respondent has not challenged Hash’s evidence of police and prosecutorial misconduct on the basis of its reliability. At least one other district court has found that evidence of police and prosecutorial misconduct is a basis upon which a petitioner can satisfy the actual innocence standard. See Lisker v. Knowles, 463 F.Supp.2d 1008 (C.D.Cal.2006), abrogated by Lee v. Lampert, 610 F.3d 1125 (9th Cir.2010). In Lisker, the court found the actual innocence exception to procedural default was established where:

[1] a jailhouse informant to whom Petitioner supposedly confessed offered similar testimony in other cases, had access to information about Petitioner’s case which was a potential source of a manufactured confession ... recounted facts .in conflict with the evidence, and appeared to have had undocumented prior contacts with police in Petitioner’s case; [2] a likely suspect with a violent eriminal record gave very suspicious statements to police soon after the murder but was investigated no further ...; and [3] missteps in the investigation likely tainted the original jury verdict as suggested by various facts including that the detective in charge of the case threw away, or at least did not preserve, key evidence and made misstatements to state authorities about the case years later.

463 F.Supp.2d at 1042. Like Lisker, Hash’s case presents evidence of (1) manufactured statements by Carter and Weakley, which also contradicted the crime scene evidence; (2) undisclosed communications between the police and Carter and Weakley; and (3) a failure to seize and test a rifle found at the house Scott lived in at the time of the murder that matched the caliber and type of weapon used to kill Scroggins.

Second, Weakley has now recanted his testimony against Hash, stating that “I have never been to Ms. Scroggins’ house, and I had nothing to do with her murder. I also have no reason to believe that Michael Hash had anything to do with her murder.” (Weakley Aff. at ¶ 2). Furthermore, Weakley now attests that the testimony he gave “at trial about the crime scene was given to me during interviews with police and prosecutors.” (Weakley Aff. at ¶5). Specifically, Weakley stated that during his interviews “the investigators became extremely frustrated and told me what I was saying wasn’t matching up with what they already knew. When I would answer questions in a way they didn’t like, the investigators would suggest that I was lying or confused.” (Weakley Aff. at ¶ 6).

Respondent challenges the reliability of Weakley’s recantation arguing that recantations are “looked upon with the utmost suspicion, United States v. Johnson, 487 F.2d 1278, 1279 (4th Cir.1973) (internal quotations and citations omitted), and that the facts in the present case are distinguishable from those in House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). (Dkt. No. 51 at ¶ 46, Dkt. No. 45, at ¶¶ 94, 98, 99). While the Court acknowledges that recantations are inherently suspicious, that does not mean they are never credible. In Hash’s case, the Court finds there is sufficient evidence that corroborates Weakley’s recantation to render it credible. Specifically, during a May 11, 2000, interview of Weakley, Investigator Jenkins asked Weakley “where did [Kloby and Hash] tell you that they shot [Scrog-gins]?” and Weakley answered “Once in the head and once in the chest.” (Weakley Interview 5/11/00 at 50). It was not until Investigator Jenkins asked the same question approximately five more times, admonishing Weakley by stating “we can’t have you add anything into it” and “I don’t want you to add to that something, whether it be the chest, the toe or anything else” that Weakley altered his story and said “They shot her in the head,” (Weakley Interview 5/11/00 at 51-53). This matches Weakley’s sworn statement that the Investigators often became frustrated with him and coached him when he was not giving the “correct” answers. (Weakley Aff. at ¶ 6). Second, Investigator Jenkins has attested to the fact that he believes Weakley “lied numerous times in discussions with law enforcement officials in Culpeper County” and has stated that “[t]o this day, I do not believe the story [Weakley and Shelton] told — that three teenage boys murdered Thelma Scroggins — is plausible.” (Jenkins Aff. at ¶ 6). Independent corroboration is provided by the fact that Weakley failed his polygraph examination. He was found to be deceptive when asked if Kloby and Hash told him they had shot Scroggins. (Weakley Polygraph at 2). Additionally, during the polygraph, “Weakley admitted that the statement he provided to police that Mike [Hash] and Jason [Kloby] told him they shot Thelma Scrog-gins was not true.” (Id).

Indeed, Hash’s ease shares a number of similarities with Wolfe, where a habeas petitioner successfully meet the Schlup standard based on the recantation of his co-conspirator who testified against the petitioner at trial. No. 2:05-cv-432, slip op. at 7 (E.D. Va. Feb. 4, 2010). In Wolfe, the co-conspirator’s recantation was corroborated by other affidavits, but the coconspirator had since recanted his recantation. In light of these troubling circumstances the district court looked to the fact that (1) “[u]nlike most recantations, [the co-conspirator] does not escape liability or improve his own situation by his recantation,” (2) “[the co-conspirator]’s affidavit also ha[d] considerable corroboration” in the form of other consistent affidavits, and (3) this was “not a case with voluminous direct evidence.” Id. at 7-9. Despite the fact that the coconspirator subsequently rescinded his recantation, the court nonetheless found that the initial recantation “[w]as enough to raise doubt in a reasonable juror’s mind” as to whether the petitioner committed the murder. Id. at 10.

Hash’s case, if anything, is stronger than Wolfe. Weakley, like the co-conspirator does not stand to gain from his recantation and Weakley’s affidavit is corroborated by the contemporaneous transcript of one of Weakley’s interviews, Investigator Jenkins’ affidavit, and by Weakley’s polygraph failure. Furthermore, in Hash’s case, as in Wolfe, there is no physical evidence linking Hash to the crime scene. Finally, Weakley has not recanted his recantation, in contrast to the co-conspirator whose recantation was nonetheless found sufficient in Wolfe.

Third, Hash has come forward with significant evidence that another suspect, Scott, may have committed the crime. At trial, although no weapon was recovered at the crime scene, the Commonwealth’s firearm examiner was able to determine that the weapon used to kill Scroggins was most likely .22 rifle and possibly a .22 Winchester rifle. (Trial Tr. at 474, 476). Scott, who lived near Scroggins at the time of her murder, was an initial suspect in the case. (State Habeas H. Tr. at 188). A man matching Scott’s description was seen the day after Scroggins’ murder in the same area as Scroggins’ truck was ultimately found. {Id. at 232). In July 1999, Investigator Carter visited the home Scott lived in at the time of Scroggins’ murder and was shown a Winchester .22 rifle, but Investigator Carter did not take possession of the rifle and it was not tested until the current federal proceedings. {Id. at 243). As part of the federal proceedings, the Winchester .22 rifle that Investigator Carter had seen in 1999 was tested by DFS. DFS concluded that “due to the time between events, lack of sufficient dissimilarities, it was not possible to definitively eliminate” the Winchester .22 rifle as the rifle that fired the bullets found at the crime scene. (Dkt. No. 29 at 2).

In House v. Bell, the Supreme Court found the actual innocence exception to procedural default was established where evidence that the victim’s husband, and not the petitioner, had committed the crime was not pursued or presented to the jury. 547 U.S. 518,126 S.Ct. 2064,165 L.Ed.2d 1 (2006). The Supreme Court noted that although the evidence pointing to the husband was “by no means conclusive,” it nonetheless “satisfied the gateway standard set forth in Schlup.” House, 547 U.S. at 552, 555,126 S.Ct. 2064. Likewise, although the evidence in Hash’s case is far from sufficient to “conclusively” determine that Scott murdered Scroggins, the Schlup standard does not require it be so. Schlup is satisfied when the new evidence weighed against all the evidence is enough to create doubt in the mind of a reasonable juror.

Accordingly, the Court finds that this is one of those rare cases where the petitioner has satisfied the actual innocence exception to procedural default because Hash has “presented] evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error....” Schlup, 513 U.S. at 316, 115 S.Ct. 851. The combination of prosecutorial and police misconduct, largely conceded or unchallenged by the Respondent; Weakley’s corroborated recantation; and the evidence that another suspect, Scott, may have actually committed the murder, when weighed against the fact that the Commonwealth’s lack of physical evidence linking Hash to the crime and the contradictory and unreliable statements of Carter, Weakley, and Shelton, it is clear Hash has satisfied Schlup’s actual innocence standard.

B. Claim IB: Failure to Present an Alternate Theory of the Crime

Respondent argues that Petitioner’s claim is procedurally barred insofar as he seeks to present evidence that his trial counsel “fail[ed] to investigate the crime scene,” (Dkt. No. 45 at ¶ 8), and “were ineffective for not presenting the single perpetrator claim” (Dkt. No. 51 at ¶ 3). However, Respondent concedes that “to the extent Hash is again arguing that his counsel failed to present evidence that other persons committed the murder, his claim is exhausted.” (Dkt. No. 45 at ¶ 8). Petitioner argues that all aspects of this ineffective assistance of counsel claim were presented and therefore the claim is properly before this Court. (Dkt. No. 49 at 14-15). The Court agrees with Petitioner and finds that all aspects of Claim IB are exhausted.

In Hash’s Petition for Appeal of the Culpeper Circuit Court’s denial of his state Habeas Petition to the Virginia Supreme Court (“Petition for Appeal”) Hash detailed the failure of his trial counsel to present an alternate theory of the crime. (Petition for Appeal at 28) (“At no time was any other theory ever presented to the jury so the jury had only one choice.”). This failure included both the failure to present the crime scene evidence directly and the failure to present testimony by Investigator Carter, the investigator responsible for processing the crime scene. Specifically, Hash stated:

[A]ll the forensic evidence ... points to a single perpetrator. It is impossible for three people to go up and down the hall in the Scroggins’ home without disturbing any of the blood drops on the floor or without knowing anything over. There is no way that Weakley and Petitioner picked up Scroggins and dragged her down to that back bedroom. There is no indication, within all of the dust and dirt on the floor of that residence, that three good sized men stomped around in that house. There is no way that Weakley ran from room to room in that residence, especially when the doors to the other rooms were still latched shut, with no footprints in those rooms....

(Petition for Appeal at 26-7) (emphasis omitted). Further, Hash described the failure of his trial counsel to present the testimony of Investigator Carter, who concluded that based on the “crime scene ... he has no doubt that there was only one person who committed the crime” because Hash’s trial counsel “simply failed to see its significance.” (Petition for Appeal at 27-8).

Furthermore, Hash’s arguments in his Petition for Appeal flow directly from the Culpeper Circuit Court’s denial of this claim. In discussing the evidence presented at the evidentiary hearing, the Culpeper Circuit Court noted Investigator Carter’s opinion that “two, three or more individuals in Mrs. Scroggins’ house at the time of the murder would have left more marks than were found.” (State Habeas Cir. Ct. Op. at 11). The Culpeper Circuit Court then denied the claim, holding “that the attorneys for petitioner made a reasonable investigation into the evidence related to the other persons of interest and thereafter made a reasonable decision” with regard to their trial strategy. (State Habeas Cir. Ct. Op. at 19).

Under Picard a legal claim need not be articulated in exactly the same manner before the state courts as before the federal courts. Indeed, the exhaustion inquiry only seeks to determine “whether, on the record and argument before it, the ... Court had a fair opportunity to consider ... [the] claim and to correct that asserted constitutional defect....” 404 U.S. at 276, 92 S.Ct. 509. Here, both the Culpeper Circuit Court and the Virginia Supreme Court were presented with a more than sufficient opportunity to rule on the merits of Petitioner’s claim, regarding trial counsel’s failure to present an alternate theory of the crime. That argument is the same argument that Petitioner now requests this Court to consider: that trial counsel should have presented an alternate theory of the crime supported by the available evidence that the crime was committed by a single perpetrator and evidence of who that single perpetrator might have been. Respondent’s request that this Court view Petitioner’s argument regarding the presentation of an alternate theory of the crime as multiple separate arguments — presentation of other suspects, presentation of crime scene evidence, and presentation of the single perpetrator theory — only some of which are exhausted strains logic and does not comport with Picard’s “fair presentation” standard.

C. Claim IIB: Investigation Violated Hash’s Due Process Rights

Respondent raises both exhaustion and timeliness as procedural bars to this Court’s authority to consider the merits of the claim.

1. Exhaustion

Respondent argues that Hash never presented the claim that the Culpeper County Sheriffs office was guilty of misconduct to the Virginia Supreme Court because it was not included in Hash’s “assignments of error” pled before the Virginia Supreme Court. (Dkt. No. 45 at ¶ 11). Petitioner responds that the claim is properly before this Court because Hash “cited a fact pattern and cases in his state papers sufficient to exhaust the claim.” (Dkt. No. 49 at 23). In support of this argument, Petitioner references the allegations of misconduct contained in his brief to the Virginia Supreme Court and Respondent’s response to those allegations. (Dkt. No. 45-5 at 37-38 and Dkt. No. 45-6 at 27). The Court agrees with Petitioner that Claim IIB is exhausted, with the exception of the facts relating to Tommy Lightfoot (“Lightfoot”).

As an initia