Full opinion text
ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS HAMILTON, District Judge. The United States Constitution requires a fair trial but not a perfect one. Petitioner Jerry E. Watkins received neither, for the prosecutor in his murder case failed to disclose to Watkins’ lawyers important information tending to show he was not guilty. The Constitution requires the government in a criminal prosecution to disclose exculpatory information to the defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The rule of Brady v. Maryland is founded upon the most basic constitutional guarantee to a person accused of a crime: the right to due process of law and a fair trial. The government is not entitled to convict a person and send him to prison while it conceals from him material evidence that tends to show he is not guilty. This habe-as corpus case illustrates both the importance of this principle and the fallibility of the criminal justice system. A jury convicted petitionei Jerry E. Watkins of a brutal murder, and the Indiana state courts have upheld Watkins’ conviction. However, Watkins has presented to the state courts and to this court new evidence from DNA tests that show he is probably innocent of the murder. In the course of this federal proceeding, Watkins has also discovered and has demonstrated that the prosecution systematically violated his constitutional right to a fair trial by failing to disclose to his lawyers important evidence that tends to show he is not guilty. These circumstances dictate that Watkins is entitled to a federal writ of habeas corpus setting aside his state conviction. Summary In November 1984, eleven-year-old Margaret (“Peggy”) Sue Altes was abducted, raped, and brutally murdered. Her body was left in brush at the edge of a field and was discovered five days after she had disappeared. The shocking crime received extensive publicity. The Hancock County Sheriffs Department investigated a number of suspects and leads for months without success. Petitioner Watkins was, understandably, a suspect from the early stages of the case. Peggy Sue was the younger sister of Watkins’ wife Janice. In September 1984, Watkins had sexually molested Peggy Sue. On Saturday, November 10,1984, two days before Peggy Sue disappeared, Watkins’ wife had caught Watkins molesting Peggy Sue again. Other family members quickly learned of the incident, although Watkins and his wife reconciled that same weekend. In 1985, after Peggy Sue’s death, Watkins was charged with and pled guilty to having molested her in September 1984. He served his prison sentence for that crime. Then, in March 1986, more than a year after Peggy Sue’s death, Watkins was charged with her murder. The prosecution sought the death penalty. In a trial during August and September 1986, a jury found Watkins guilty of murder. At the penalty phase of the trial, the jury recommended against the death penalty. The Hancock Superior Court accepted the jury’s recommendation and sentenced Watkins to 60 years in prison. The Supreme Court of Indiana affirmed Watkins’ conviction and sentence on direct appeal. Watkins v. State, 628 N.E.2d 456 (Ind.1988). In 1992, Watkins sought post-conviction relief in the state courts based on new evidence from DNA testing, which had not been available at the time of his trial. As explained in more detail below, the DNA testing showed the victim’s body contained semen which — to a certainty — could not have come from Watkins. The trial court nevertheless denied relief, concluding the DNA evidence was only cumulative of evidence at trial of inconclusive blood tests that suggested the possibility of a blood type not consistent with either Watkins or the victim. The Indiana Court of Appeals affirmed the denial of post-conviction relief in an unpublished opinion. See Watkins v. State, No. 30A04-9504-PC-118, 1996 WL 42093 (Ind.App. Jan.29, 1996). That opinion reflects a clear misunderstanding of the DNA evidence. The Court of Appeals said the DNA results only “suggest the possibility” of another perpetrator. In fact those results prove beyond a reasonable doubt that someone other than Jerry Watkins raped the victim when she was murdered. Based on that misunderstanding of the evidence, the Court of Appeals also concluded that the DNA evidence was merely “cumulative” of the inconclusive trial evidence about the results of blood type tests. The Supreme Court of Indiana denied Watkins’ petition for transfer. In March 1997, acting pro se, Watkins filed in this court a petition for a writ of habeas corpus contending that his conviction was obtained in violation of his federal constitutional rights. This court initially denied Watkins’ request for appointment of counsel on his behalf. After full briefing of the petition by Watkins, however, in November 1998 this court appointed counsel for Watkins to file a supplemental brief on his behalf. Counsel prepared and filed a supplemental brief. After a conference with counsel for both Watkins and respondent in July 1999, and with the agreement and cooperation of counsel for respondent, the court gave Watkins’ counsel a further opportunity to investigate the facts of the case and to file an amended petition. The amended petition was filed on November 5, 1999, along with an Appendix containing new documentary evidence. Watkins’ custodian has responded to the claims, and Watkins filed his traverse on March 29, 2000. On April 10, 2000, the court conferred with counsel for both parties on their interest in an evidentiary hearing. Counsel for both sides stated that they did not seek an evidentiary hearing and that the court should decide the matter on the written submissions. The expansion of the record that has occurred in this case is the functional equivalent of an evidentiary hearing. That approach was appropriate under 28 U.S.C. § 2254(e)(2) because, as explained below, there is no indication here that Watkins or his lawyers were at fault for failing to discover the prosecutor’s Brady violations before the state proceedings concluded. See Michael Williams v. Taylor, — U.S. -, 120 S.Ct. 1479, 1487, 1491-92, 146 L.Ed.2d 435 (2000) (§ 2254(e)(2) bars evidentiary hearing in federal habeas action only if failure to present factual basis of claim to state court was the result of some fault on petitioner’s part). Moreover, even if § 2254(e)(2) applied, Watkins also satisfies the stringent requirements of the escape clause in that provision. Watkins’ Brady claims that entitle him to relief are based on a factual predicate that could not have been previously discovered through the exercise of due diligence, and the facts underlying the claims establish by clear and convincing evidence that, but for the Brady violations, no reasonable fact finder would have found Watkins guilty of the underlying offense. See 28 U.S.C. § 2254(e)(2) (exception permitting evidentiary hearings even if petitioner was at fault for failing to develop factual predicate in state court). As explained in detail below, the court grants Watkins’ petition for a writ of habe-as corpus because his conviction and continued imprisonment violate the United States Constitution. Watkins has come forward with compelling evidence that he is actually innocent of murdering Peggy Sue Altes. The state has always contended that Peggy Sue was raped at the time she was killed. The DNA evidence shows conclusively that Watkins could not have been the source of at least some of the semen found in the victim’s body. The most reasonable explanation of that scientific evidence is that one man — who could not have been Watkins — raped the victim. The DNA evidence does not exclude the theoretical possibility that the semen might have come from two men, one of whom might have been Watkins. However, the undisputed expert testimony shows that such a possibility is “farfetched” from a scientific standpoint. The theory depends on the improbable assumption that semen from two different men just happened to be collected on the same vaginal swab in exactly equal amounts. The theory is also utterly inconsistent with the theory of the case the prosecution presented to the jury. In addition, the state courts’ treatment of the DNA evidence as merely cumulative of the blood type test results introduced at trial was plainly unreasonable because it was based on a clear misunderstanding of that evidence. Whether even powerful evidence of actual innocence as a free-standing claim is enough to justify federal habeas relief from a state conviction is a matter of considerable debate in the courts. See, e.g., Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (noting that “the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency,” then assuming but declining to hold that “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional”). In this case, however, petitioner Watkins is not making a free-standing claim of innocence. He has also shown that the prosecution systematically violated his constitutional right to a fair trial and due process of law by failing to disclose to his lawyers a variety of exculpatory evidence. That suppressed evidence includes evidence: (a) that an undisclosed witness saw Peggy Sue being abducted at a time for which Watkins has a solid alibi, and by a person who could not have been Watkins; (b) that another suspect in the case failed a polygraph test; and (c) that investigators received reports of other men who had known Peggy Sue and who either told others they had killed her or turned up with blood on their clothes the night she disappeared. In addition to showing the prosecution’s systematic failure to disclose this exculpatory information, Watkins has come forward with new evidence from the state’s chief witness, Dennis Ackeret, to the effect that the state’s case was built upon knowingly perjured testimony. Ackeret testified at trial that Watkins had confessed the crime to him while they were briefly together in a holding cell in the Marion County courts. In the newly discovered evidence, Ackeret swore in a court filing in his own case in 1987 that he learned the details of the crime not from Watkins, as Ackeret testified and as the state argued at trial, but from the prosecutors and/or investigators. Because the case against Watkins was so thin at trial, and because it has been so thoroughly undermined by the new DNA evidence, the prosecutor’s failures to disclose at least the witness to the abduction and the fact that another suspect failed a polygraph test are each sufficient to require the court to grant relief. There is “ ‘a reasonable probability’ that the result of the trial would have been different” if either of those suppressed items had been disclosed to the defense, as the Constitution required. Strickler v. Greene, 527 U.S. 263, 288, 119 S.Ct. 1936, 1952, 144 L.Ed.2d 286 (1999) (adopting standard for prejudice element of Brady claim). The court therefore is today issuing a writ of habeas corpus ordering the State of Indiana within thirty (30) days to release Jerry Watkins from custody based on his conviction for murdering Peggy Sue Altes, although the Constitution and the writ do not prohibit Indiana from attempting to retry Watkins. The court has not attempted to resolve on the paper record the truth or falsity of Ackeret’s accusation that prosecutors and/or investigators fed him the factual details of the murder to help him testify convincingly, but falsely, about Watkins’ supposed confession. Discussion I. Watkins’ Amended Claims and the Procedural Requirements for Habeas Relief Watkins seeks relief pursuant to 28 U.S.C. § 2254(a). Under that statute, the court may award him relief only if he demonstrates he is in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. E.g., Del Vecchio v. Illinois Dep’t of Corrections, 31 F.3d 1363, 1370 (7th Cir.1994) (en banc). Because Watkins filed his federal habeas petition after enactment of the Antiterrorism Effective Death Penalty Act (AEDPA) on April 24, 1996, that Act’s restrictions on federal review of state court rulings apply to this case. See Michael Williams v. Taylor, — U.S. -, 120 S.Ct. 1479, 1486, 146 L.Ed.2d 435 (2000); Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, a federal court must deny a habeas petition on a claim adjudicated on the merits in state court unless the state court adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) When considering habeas petitions under the AEDPA, federal courts must keep in mind the difference between an “unreasonable application of federal law” and an “incorrect application of federal law.” Terry Williams v. Taylor, — U.S. -, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Supreme Court’s recent interpretation of that difference in the Terry Williams case is consistent with the Seventh Circuit’s many opinions applying 28 U.S.C. § 2254(d) as amended by the AED-PA. See, e.g., Schaff v. Snyder, 190 F.3d 513, 523 (7th Cir.1999). In Hall v. Washington, the Seventh Circuit explained: The statutory “unreasonableness” standard allows the state court’s conclusion to stand if it is one of several equally plausible outcomes. On the other hand, Congress would not have used the word “unreasonable” if it really meant that federal courts were to defer in all cases to the state court’s decision. Some decisions will be at such tension with governing U.S. Supreme Court precedents, or so inadequately supported by the record, or so arbitrary, that a writ must issue. 106 F.3d 742, 748-49 (7th Cir.1997); see also Rivera v. Sheriff of Cook County, 162 F.3d 486, 489 (7th Cir.1998) (federal courts denied relief after state courts determined that trial judge who granted new trial after bench trial did not acquit defendant; state courts’ determination was not “an unreasonable determination of the facts in light of the evidence presented,” but was “a plausible descrambling of an ambiguous oral remark”). Watkins has stated his amended claims for federal habeas relief in four sets. First, he claims the prosecutor violated his rights under Brady and the Fifth, Sixth, and Fourteenth Amendments by failing to disclose to the defense exculpatory information in the prosecution’s exclusive possession. The suppressed evidence included an eyewitness who saw Peggy Sue’s abduction at a time and place for which Watkins had an alibi, and with a description of a culprit who did not look at all like Watkins; information from several witnesses regarding other suspects; information that another suspect in the case had failed a polygraph test; and evidence tending to impeach the credibility of the state’s key witness, Dennis Ackeret. Watkins has also discovered a sworn statement from Ackeret in 1987 repudiating his trial testimony and swearing that he learned the critical details of the crime not from Watkins but from investigators and/or prosecutors who showed him photographs of the victim and even took him to the murder site. If that statement is true, as Watkins contends, the prosecution also suppressed that explosive information. In his amended claims, Watkins also asserts that the state violated his rights under the Fifth, Sixth, and Fourteenth Amendments by failing to correct numerous false and misleading impressions given to the jury as a result’ of the failures to disclose the foregoing items. Watkins asserts in the alternative a claim that his lawyers were ineffective before and during trial because they failed to discover the information the state suppressed. Finally, Watkins asserts under the Fourteenth Amendment that the evidence against him is insufficient to support a conviction. Watkins did not raise any of his Brady claims or his other amended claims in the state courts. Before considering the merits of a petition for habeas corpus, a federal court must ensure that the petitioner has satisfied two procedural requirements: exhausting state remedies and avoiding procedural default. Failure to exhaust all state remedies ordinarily bars consideration of the petition, and failure to raise a claim during the course of the state court proceedings ordinarily amounts to procedural default that bars consideration of a claim not raised. See Jones v. Washington, 15 F.3d 671, 674 (7th Cir.1994), overruled on other grounds, Hogan v. McBride, 74 F.3d 144, 147 (7th Cir.1996); see also Cawley v. DeTella, 71 F.3d 691, 694 (7th Cir.1995) (“if the state in which the habeas petitioner was convicted would treat failure to appeal as a procedural default barring further review, that default likewise bars federal review of the claim”); 28 U.S.C. § 2254(b) (statutory requirement of exhaustion of state remedies). Watkins has satisfied both of these requirements. He has shown that no state remedies are available to him, so that he has exhausted those remedies. In addition, he satisfies the “cause and prejudice” exception and the “fundamental miscarriage of justice” exception to the doctrine of procedural default. Although the requirement of exhausting available state remedies and the doctrine of procedural default are closely related and are often addressed together, there is an important difference between them. To determine whether a claim has been exhausted, the question is whether any meaningful state remedies are still available at the time of the federal petition. Engle v. Isaac, 456 U.S. 107, 125-26 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); accord, Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (“the requisite exhaustion may nonetheless exist, of course, if it is clear that respondent’s claims are now procedurally barred under Pennsylvania law”); Teague v. Lane, 489 U.S. 288, 297-298, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Thus, even though a claim was never presented to the state courts (at least as a constitutional claim), state remedies for the claim can be exhausted for purposes of § 2254(b) if it is clear that the doors of the state courts are no longer open to consider the claim. In such cases, even if a claim was procedurally defaulted in the state courts, the exhaustion requirement is satisfied because there are no longer remedies available for the petitioner to exhaust. See Gray v. Netherlands 518 U.S. 152, 161, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996) (because exhaustion requirement refers only to remedies still available at the time of the federal petition, it is satisfied if it is clear the petitioner’s claims are now procedurally barred under state law); Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Engle v. Isaac, 456 U.S. at 125-26 n. 28, 102 S.Ct. 1558. Petitioner Watkins pursued his direct appeal to the Supreme Court of Indiana, and he pursued post-conviction relief to the same court. Also, the state courts directly considered and rejected Watkins’ claim that the new DNA evidence shows his innocence. Under these circumstances, there is no reason to expect that Watkins could use that evidence now to invoke Indiana’s doctrine of “fundamental error” to seek some type of extraordinary relief, such as filing a successive petition for post-conviction relief. See generally, e.g., Arthur v. State, 663 N.E.2d 529, 531—32 (Ind.1996); Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985). The state does not contend that any further procedures are available to Watkins to present any of the claims he raises in his amended claims. Thus, all state remedies are exhausted for purposes of this case. The state vigorously contends, however, that Watkins has procedurally defaulted on the claims presented in his amended petition, except for the new Brady claims, which are based on evidence his attorney discovered in the course of this federal case. See Crivens v. Roth, 172 F.3d 991, 995-96 (7th Cir.1999) (petitioner had not defaulted his Brady claims based on newly discovered information: ‘We will not penalize Crivens for presenting an issue to us that he was unable to present to the state courts because of the state’s misconduct.”). Watkins did not present his amended claims to the state courts, or at least did not present them as federal constitutional claims. As a result, this court may not review the merits of the claims on which Watkins has procedurally defaulted unless Watkins either (1) shows cause for the default and actual prejudice as a result of the alleged violation of federal law, or (2) demonstrates that failure to consider his claims will result in a fundamental miscarriage of justice. E.g., Coleman v. Thompson, 501 U.S. at 749-50, 111 S.Ct. 2546. The “miscarriage of justice” doctrine “differs qualitatively from other legal arguments in that, by its very nature, it serves as the last line of defense against a fundamentally unjust incarceration.” Mills v. Jordan, 979 F.2d 1273, 1277-78 (7th Cir.1992), superseded by statute on grounds not relevant here, as stated in Hope v. United States, 108 F.3d 119, 120 (7th Cir.1997). Watkins relies on both grounds for overcoming the obstacle of procedural default. First, with respect to the Brady claims, a brief discussion of the basis for the state’s concession is in order. A Brady claim has three components: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). Strickler v. Greene shows that a Brady claim may be raised for the first time in a federal collateral proceeding where support for the claim was not discovered before the state court proceedings concluded. 527 U.S. at 280-82, 119 S.Ct. at 1948-49. The Supreme Court’s recent decision in Michael Williams v. Taylor, — U.S. -, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), which applied the AEDPA amendments to 28 U.S.C. § 2254(e), is also consistent with Strickler and the state’s concession in this case. In Michael Williams, the Court unanimously held that the AEDPA does not bar a petitioner from presenting new evidence to a federal court where the prosecution has' concealed the relevant facts through the course of state court proceedings. — U.S. -, 120 S.Ct. 1479, 1490, 1492-93, 146 L.Ed.2d 435. As explained below in Part IV, Watkins exercised due diligence in the state courts to obtain disclosure of the Brady material. The prosecutor failed to produce it despite timely, repeated, and clear requests. In Strickler the Supreme Court addressed the interplay between the “cause and prejudice” exception to the procedural requirements and the elements of a Brady claim itself, which parallel cause (the defendant was not aware of the exculpatory material) and prejudice (the material is important enough to undermine confidence in the outcome of the trial). See 527 U.S. at 282, 119 S.Ct. at 1949. The Court held that the petitioner established cause for failing to raise his Brady claim in the state courts because he was not aware of the factual basis for the claim until after proceedings in the state courts had concluded. 527 U.S. at 285-86, 119 S.Ct. at 1951-52; cf. Michael Williams v. Taylor, — U.S. -, 120 S.Ct. 1479, 1491-92, 146 L.Ed.2d 435 (2000) (under AEDPA petitioner not entitled to hearing on Brady claim where his lawyer was aware of factual basis for such claim during state court proceedings but failed to develop the claim in state courts). In light of Strickler, the state does not contend in this case that Watkins defaulted his Brady claims for suppression of exculpatory evidence. See Resp. Mem. at 15-16, citing Strickler. The state also does not deny that it suppressed the material in question, nor does the state deny that Watkins made sufficient requests for exculpatory information. Thus, because the prejudice element of the Brady violation is at least as demanding as the prejudice element of the “cause and prejudice” exception to procedural default, the “cause and prejudice” inquiry on Watkins’ Brady claims collapses into the merits of those claims. To avoid procedural default on all his other claims, Watkins relies on the narrow exception to procedural default for a case “implicating a fundamental miscarriage of justice” because he is actually innocent of the crime. See Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). To show a fundamental miscarriage of justice based on actual innocence, and thus to obtain review on the merits of his defaulted claims of constitutional error in his trial, Watkins must come forward with new facts that raise doubt about his guilt sufficient “to undermine confidence in the result of the trial without the assurance that that trial was untainted by constitutional error.” See id. at 317, 115 S.Ct. 851. In making that showing of actual innocence sufficient to undermine confidence in the result of the trial, Watkins is not limited to the newly-discovered material identified in his Brady claims; he may also rely on the DNA evidence. See id. at 327-28, 115 S.Ct. 851 (court must make determination concerning innocence in light of all the evidence, including evidence that became available only after trial). Against this background, the court explains next in Part II the case the state presented against Watkins at trial, then in Part III the DNA evidence and its significance. That evidence and its effect on the state’s case are central to Watkins’ ability to present his constitutional claims in federal court, as well as to the prejudice element of the Brady violations. Finally, the court addresses in Part IV Watkins’ constitutional claims of the prosecution’s Brady violations. Because at least two of the several Brady violations are each sufficient, standing alone, to warrant relief, and because the cumulative effect of the systematic Brady violations also warrants relief, the court does not reach the other claims Watkins has raised in his amended petition. II. The State’s Case Against Watkins at Trial Jerry Watkins was an early and natural suspect in the case. The morning of Saturday, November 10, 1984, Watkins’ wife Janice caught him fondling her eleven-year-old sister, Peggy Sue Altes. The weekend was an emotionally charged one, to put it mildly. Other members of Janice’s and Peggy Sue’s family quickly learned what had happened. Janice prepared to move out of the home she shared with Watkins, but she and Watkins reconciled on Sunday. Janice testified that Watkins apologized to other members of the family Sunday night, including Peggy Sue. R. 1518-19. On Monday, November 12, 1984, however, Peggy Sue disappeared. Her body was discovered five days later, on November 17, 1984, at the edge of a field in Hancock County. She died of knife wounds to the neck that severed a jugular vein and carotid artery. Her body was nude. There was evidence of rape. An autopsy found semen in her vagina, which also had a tear caused by penetration. Her hand was clutching grass and weeds where her body was found, which indicated that she had been killed at that location. See R. 899. The medical examiner was unable to estimate the time of death other than to say that Peggy Sue had died at least 48 hours before her body was found. The Hancock County Sheriffs Department investigated the murder for many months without results. Charges were filed against Watkins only after one Dennis Ackeret told investigators that Watkins had confessed to him just after Watkins had been sentenced in the Marion County courts for molesting Peggy Sue in September 1984, which had occurred about two months before she was murdered. This alleged confession was the only direct evidence of Watkins’ guilt. Ackeret has a long criminal record and a long record of cooperating with the police in Indiana and Florida in return for both cash and lighter sentences for his own crimes. Ackeret testified that he and Watkins were confined together in a holding cell in the Marion County courts when Watkins appeared in court for sentencing on the child molesting case, which was prosecuted in Marion County. Ackeret testified that Watkins was upset and crying, and told him he had just been sentenced for child molesting. Ackeret then testified that Watkins said he had killed the girl he had molested by slitting her throat and leaving her for dead in some bushes in Hancock County. R. 1058-59. Ackeret said he told his girlfriend and another jail inmate about this confession shortly after it occurred, and his girlfriend set up a three-way telephone call a few weeks later in which Ackeret told an investigator for the Hancock County Sheriffs Department about the confession. Ackeret and police and prosecutors testified before the jury that Ackeret had been promised nothing for his testimony other than an effort to help protect him from retribution in prison. Ackeret testified that he told the police he would testify about Watkins’ confession even if they could do nothing for him. R. 1065. Watkins testified at trial. He denied making the confession to Ackeret. He testified that a man he did not know had been in the holding cell the day of his sentencing and had asked him lots of questions about his case, although Watkins said he would not have been able to identify Ackeret as the person. Watkins said he told the man in the holding cell what his case had been, and then continued: “and a little bit later I asked him if he’d heard about a little girl being murdered and being dumped out in Hancock County. I told him that that was my sister-in-law and I wished that the detectives would find the one or the ones that did it.” R. 1767. Watkins also called as a witness a person incarcerated with Ackeret who described a conversation in which Ackeret had described a scheme for getting out of jail. The plan was to find an unsolved crime, have a confederate research the newspaper coverage, and then use the information to convince the police that Ack-eret had knowledge of the crime. The state responded with evidence of newspaper stories about Peggy Sue’s murder that had been inaccurate in certain details, but as to which Ackeret’s testimony had been accurate. The state also introduced evidence showing that Ackeret and Watkins had both appeared in court the same day, on August 14, 1985. Both sides offered evidence from other witnesses (most of whom had been inmates in the Marion County or Hancock County jails) tending to support or impeach Ackeret’s testimony in various ways. Apart from this dubious alleged jailhouse confession (about which Ackeret has since said he lied, as discussed below), there was little evidence tying Watkins to Peggy Sue’s murder, even though the admitted molestation made Watkins an obvious suspect. No physical evidence linked Watkins to the crime. Watkins and his wife testified that Watkins was never in the right place at the right time to have been able to abduct Peggy Sue and murder her, but it was a difficult alibi defense because it had to cover several days. The medical evidence could not fix the date of Peggy Sue’s death. An issue arose during trial concerning the results of polygraph examinations. Watkins’ lawyer cross-examined the state’s chief investigator on his reasons for not pursuing another suspect, one Bill McClain. When pressed, the detective testified that McClain had passed a lie detector test. The trial court had issued an order in limine barring evidence of any polygraph tests. After this testimony, Watkins asked the court to lift the order so that he could present evidence that he too had passed a polygraph test on Peggy Sue’s murder. The trial court declined to do so. At trial, which occurred before DNA testing was available (at least as a practical matter), the state introduced evidence of blood types from blood tests and tests of evidence collected in the autopsy. The evidence showed that Peggy Sue Altes was blood type A and that Watkins was blood type 0. The vaginal swabs of semen taken during the autopsy tested positive for blood type B, which would be consistent with blood types B or AB, but is definitely not consistent with Watkins’ blood type 0. However, the state offered an explanation for these results. The state’s expert witness testified that, with the blood and semen evidence, “we couldn’t really eliminate a blood type of any particular type for the semen donor....” R. 997-98. She said the evidence of blood type B was “very spurious” and “erratic.” R. 996. She also testified that, although the evidence of type B blood could have resulted from an assailant having B or AB blood, it could also have resulted from bacterial contamination occurring in the days before Peggy Sue’s body was discovered. R. 996-97. The defense questioned the “bacterial contamination” theory and argued that the blood test results showed Watkins could not have been the murderer. The state argued in rebuttal that the blood test results were simply inconclusive. Relying on the bacterial contamination theory, the state argued the blood tests could not eliminate any male, including Watkins, as the source of the semen. R. 2227-28, 2234. The state also pointed out in its closing argument that there was “no evidence whatsoever that anybody else ever molested Peggy Altes.” R. 2177. The jury deliberated until 2:16 a.m. their first day of deliberations and reported an impasse. R. 2302. The jury asked for and received transcripts of the trial testimony of Ackeret, his girlfriend Jeanne Rosner, and Paul Frazzitta, who had been housed with Ackeret in the Marion County Jail. R. 2295-2307. During the second day of deliberations, the jury found Watkins guilty of murder. At the penalty phase of the trial, the principal defense was residual doubt. See R. 2346. The jury returned a recommendation against the death penalty. The judge sentenced Watkins to what was then the statutory maximum of 60 years in prison. After Watkins was found guilty, he moved for a new trial based on affidavits from two men who had been incarcerated with Ackeret. They testified that Ackeret had told them that he had lied about Watkins and that his description of the details of Peggy Sue’s murder was based on information that had been given to him by a detective. R. 18-31. The trial court denied Watkins’ motion for a new trial. The Supreme Court of Indiana found that the denial was not an abuse of discretion. Watkins v. State, 528 N.E.2d at 460. III. The New DNA Evidence In 1992 Watkins filed with the state trial court a petition for post-conviction relief seeking DNA testing. The trial court granted Watkins’ request to have his blood and evidence from the case tested for DNA identification. The tests were performed by GeneScreen in 1993. The tests performed on the samples are known as “DQ Alpha” tests. See PCR 201-03 (report of test results); PCR 235-39 (explaining the test); see also Andre Moenssens, et al., Scientific Evidence in Civil and Criminal Cases 910-15 (4th ed.1995) (describing DQ Alpha testing). A DQ Alpha test looks at a part of the HLA gene on the sixth pair of human chromosomes. There are six different genotypes, known as 1.1, 1.2, 1.3, 2, 3, and 4. Each person has two DQ Alpha portions of that gene, one on each of the two chromosomes in the sixth pair, so there are 21 possible combinations of genotypes. See PCR 235-38. A. The DNA Test Results The original written report of the Gene-Screen tests from this case is found at PCR 201-03. GeneScreen tested one vaginal swab from the victim, two blood samples known to be from Watkins, and one blood sample from the victim. Watkins’ blood tested as 4/4, meaning that both of his DQ Alpha portions are the same. Peggy Sue Altes’ blood tested as 1.2/3, meaning that she had those two types of DQ Alpha portions. The female material from the vaginal swab also tested as 1.2/3, which is consistent with Peggy Sue’s blood. The critical test results were those from the male material from the vaginal swab. That material tested as 1.1/4, with a “faint” result of 3. The GeneScreen testers concluded the faint 3 “was likely contributed by the victim” from the female portion of the swab materials. See PCR 203; see also PCR 270-72 (Dr. Giles explaining how such faint results are possible where testers must separate male and female portions of material from one swab). The 1.1 results from the vaginal swab cannot possibly be attributed to Jerry Watkins or to Peggy Sue Altes. On that point, the record permits simply no basis for reasonable dispute, and the importance of this evidence cannot be overstated. The 1.1 results mean that semen from someone other than Jerry Watkins was deposited in Peggy Sue Altes’ body at the time of her death. The state nonetheless insists this evidence does not show Watkins’ innocence, let alone a right to a new trial. On this point the state makes two arguments. First, the state contends the DNA evidence does not foreclose the possibility that Watkins was the source of some of the semen, so that there were two rapists at the time of Peggy Sue’s murder. Second, the state points out that Watkins was convicted of murder rather than rape or child molesting, so that the DNA evidence shows nothing material about the crime of conviction. Neither argument withstands scrutiny. B. The State’s New Two Rapists Theory The DNA evidence shows beyond dispute that at least some of the semen found in the victim at the time of her death did not come from Jerry Watkins. The evidence does not foreclose, as a matter of indisputable scientific fact, the possibility that the semen came from two men. Dr. Giles testified that, because the DQ Alpha results were 1.1/4, he could not completely exclude the possibility that Watkins was a source because his DQ Alpha genotype is 4/4, and some of the material on the vaginal swab tested as 4. This theoretical possibility to explain the DQ Alpha test results is that the male portion of the swab material could have come from a man like Watkins with 4/4 DQ Alpha, which was mixed with an equal amount of material from another man with l.l/l.l DQ Alpha. In an effort to keep Jerry Watkins in prison, the state has clung to this theoretical possibility. A close look at this possibility shows it is farfetched, both as a matter of science and in terms of the overall evidence in the case. The theoretical possibility is also completely inconsistent with the theory of the case that the prosecution presented to the jury. Dr. Giles explained that the 1.1 portion and the 4 portion of the male material on the swab were of equal intensity. That equal intensity would be expected if the sperm came from one man with the 1.1/4 genotype. Dr. Giles described that explanation as the “most reasonable” and the “more logical easiest interpretation” of the 1.1/4 results. PCR 260, 264. To get such a result from two men, one with DQ Alpha portions of l.l/l.l and one with 4/4 (like Watkins), Dr. Giles explained, the two men would have to have deposited semen mixed so that the swab collected equal amounts of sperm from each. PCR 265-66. Dr. Giles testified that this possibility of an equal mixture of 11/1.1 and 4/4 from two men was “farfetched” from a scientific standpoint. PCR 265. How did the state courts deal with this evidence? Based on this evidence, the state trial court found in the post-conviction proceeding as a fact: “The DNA analysis did not exclude Jerry E. Watkins as a donor of some of the seminal fluid on the victim’s vaginal slides [sic, should be swabs] although his status as a donor was unlikely.” PCR 127 (emphasis added). That finding of fact is clearly correct. However, the trial court stated as a conclusion of law: The DNA analysis evidence is cumulative of the blood testing evidence at trial. Such evidence basically repeats in an upgraded form testimony which was presented to the Jury at the original trial wherein it was indicated the seminal fluid contained in the victim was contributed by a donor with a blood type different from the Defendant’s. PCR 128. The Indiana Court of Appeals commented on that trial court conclusion as follows: In other words, the jury was fully aware of the proposition that there was an incompatible blood type, although Watkins could not be definitely excluded by the test results introduced at trial. Likewise, the DNA tests provide the same information: Watkins cannot be definitely excluded as a perpetrator but the results suggest the possibility of the participation of another perpetrator. Thus, the probative value of the results of both tests is similar. Watkins v. State, slip op. at 5-6, 1996 WL 42093(emphasis added). This court is considering the DNA evidence as it applies to Watkins’ claims of actual innocence and cause and prejudice to excuse his failure to present his Brady claims and other constitutional claims to the state courts. That is, the state courts did not adjudicate the precise claims before this court. However, the state courts did address directly the significance of the DNA evidence and Watkins’ claim that the evidence shows his innocence. Under these unusual circumstances, the court assumes at least for purposes of argument that this court’s adjudication of the actual innocence issue is subject to the “unreasonable determination of the facts” standard in 28 U.S.C. § 2254(d)(2). Applying this standard, the state courts’ treatment of the DNA evidence as cumulative was an unreasonable determination of the facts in light of the evidence presented to the state courts. First, the Court of Appeals’ statement that the DNA results “suggest the possibility” of another perpetrator reflects a clear misunderstanding of the evidence. In terms of 28 U.S.C. § 2254(e)(1), clear and convincing evidence shows the Court of Appeals’ statement is wrong. The DNA results do not merely “suggest the possibility.” They prove conclusively — beyond any reasonable doubt — that someone who was not Jerry Watkins raped the victim at the time of her death. The Court of Appeals’ assessment of the DNA results as merely “cumulative” to the ambiguous blood test evidence admitted at trial was based on that court’s basic misunderstanding of the significance of the DNA evidence. That misunderstanding alone shows the state courts’ evaluation of this evidence was unreasonable. Second, based upon the misunderstanding of the evidence, the state courts failed to consider the significance of that evidence in the context of all the evidence at trial. Evidence is “cumulative” when it “goes to prove what has already been established by other evidence.” Smith v. Secretary of New Mexico Dep’t of Corrections, 50 F.3d 801, 829 (10th Cir.1995) (ordering habeas relief based on Brady violations). Although the DNA results do not “definitely exclude” Watkins, the state courts overlooked the dramatic difference in the quality of evidence at trial and in the post-conviction proceeding on that point. Evidence that converts an arguable, hotly contested possibility into a certain fact cannot fairly and reasonably be described as “cumulative.” The state courts failed to take into account the use the state was able to make at trial of the ambiguity of the blood test results. At trial, the state managed to use the theory of “bacterial contamination” to discredit the blood test results. The state then argued to the jury that those test results were inconclusive on any issue. See R. 996-97, 1025-26 (testimony of expert witness on results of blood tests); R. 2227-28, 2284 (rebuttal closing argument). With this “explanation,” the tests excluded no male as the molester/rapist and therefore posed no challenge to the confession as reported by Ackeret. At trial, the state never suggested that more than one person was responsible for raping and killing Peggy Sue. In fact, the prosecutor argued to the jury: “There is no evidence whatsoever that anybody else ever molested Peggy Altes.” R. 2177. With the DNA evidence, that last statement is now conclusively proven wrong. The jury was told only that the blood test results did not exclude Watkins or any other male as a suspect. To explain the DNA evidence showing beyond dispute the presence of semen from someone other than Watkins, the state must resort to the theory that Watkins and another person raped the victim at the time of her death. With the DNA evidence, the state courts and this court also confront undisputed expert evidence that a person, like Watkins, with a 4/4 DQ Alpha portion could have been involved only if one is willing to indulge in the “farfetched” assumption that the vaginal swab just happened to collect equal amounts of sperm from one man with 11/1.1 DQ Alpha and another with 4/4. Moreover, Ackeret never claimed that Watkins told him anyone else was involved. Thus, under the state’s new two rapists theory, a jury would have to believe beyond a reasonable doubt that Watkins withstood repeated questioning by the police, coordinated an elaborate false alibi with his wife, but then confessed a horrific crime to a total stranger in a jail holding cell — and that he made this remarkable confession without ever mentioning that another person was involved. “Farfetched” is a generous description of this theory. Whatever one thinks of the state’s “bacterial contamination” theory at trial, the new DNA evidence definitively excludes the possibility that Watkins and only Watkins raped and killed the victim. The DNA evidence thus forces the state to argue its new theory of two rapists. In light of all the evidence, that theory is merely an improbable theoretical possibility that no reasonable juror would credit beyond a reasonable doubt. On this record, the state courts’ treatment of the DNA results as merely “cumulative” cannot stand as a reasonable assessment of the facts. C. The State’s New Effort to Separate the Murder from the Rape The state’s second argument is that Watkins has shown at most only “legal” innocence as distinct from “actual” innocence. See Calderon v. Thompson, 528 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998); Bousley v. United States, 523 U.S. 614, 623-24, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Because Watkins was convicted of murder rather than rape, the state argues, even evidence that he is innocent of rape would not show he is actually innocent of murder. The argument may be technically correct as an abstract legal proposition, but it is beside the point in evaluating the significance of the DNA evidence in light of both all the other evidence in the case linking the rape and the murder and the prosecution’s use of that evidence. Under Schlup v. Delo, the court must consider all the available information, including the DNA evidence and the new evidence of Brady violations. See 513 U.S. at 327-28, 115 S.Ct. 851. Both sides agree the physical evidence from the autopsy shows that Peggy Sue was raped very close to the time of her death. See R. 900-04 (medical examiner testified that vaginal wound occurred when victim was alive, but close to the time of her death); R. 2162 (state argued in closing that wounds from rape were as old as fatal knife wounds to throat). The state contended at trial that the same person— Watkins — committed both crimes. In closing argument, the state asserted there was no evidence that anyone else had molested Peggy Sue Altes. R. 2177. The trial record contains not a hint of a suggestion that two different people were responsible for her rape and her murder. The prosecution never even suggested that possibility as a means for explaining the results of the blood tests. The prosecution chose instead to rely solely on the “bacterial contamination” theory to explain those results. In addition, the prosecution used the evidence linking the rape and murder to persuade the trial court to admit damning evidence against Watkins. The trial court admitted evidence that Watkins had molested Peggy Sue and that he had earlier molested her older sister. (The testimony indicated that he had fondled their breasts and genitals.) The trial court admitted this evidence on the theory that Watkins showed a “depraved sexual instinct.” But that evidence was admitted as relevant only because there was also evidence that the victim had been raped, presumably, so the state’s theory went, by Watkins. See Watkins v. State, 528 N.E.2d at 458 (on direct appeal, upholding admission of evidence on theory of “depraved sexual instinct” because of evidence of rape at the time of the murder). By arguing to this court that the murder and the rape were not necessarily linked, the state has abandoned the foundation of both the case it persuaded the trial judge to allow and the case it persuaded the jury to credit beyond a reasonable doubt. D. Applying the “Actual Innocence” Test Thus, when one understands the DNA evidence and the state’s case against Watkins, the DNA evidence cannot reasonably be treated as merely “cumulative.” It changes the picture completely. The state’s theory that Watkins alone raped Peggy Sue and then killed her — the only theory argued to the jury — is excluded by the DNA evidence beyond any reasonable doubt. The test under Schlup v. Delo is whether the petitioner shows that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” 513 U.S. at 327, 115 S.Ct. 851, quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The Supreme Court explained in Schlup that the petitioner must show it is “more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” 513 U.S. at 327, 115 S.Ct. 851. The Court went on to explain that this standard is more stringent than the simple “prejudice” standard but not as stringent as the “clear and convincing evidence” standard required under Sawyer v. Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), for claims by a factually guilty defendant that aggravating circumstances needed to support imposition of the death penalty were not present. See Schlup, 513 U.S. at 327, 115 S.Ct. 851. The Supreme Court offered lower courts the following guidance in Schlup. First, the district court is not bound by the rules of admissibility that would govern at trial, so the court may consider the probative force of evidence that was excluded or unavailable at trial. Id. at 327-38, 115 S.Ct. 851. Second, the court must make the determination of innocence in light of all the available evidence, including the newly discovered evidence. Id. at 328, 115 S.Ct. 851. The court does not act itself as a hypothetical juror, but must instead “make a probabilistic determination about what reasonable, properly instructed jurors would do.”' Id. at 329, 115 S.Ct. 851. In making this determination, the court must keep in mind the term “reasonable.” The court must presume that a reasonable juror would consider fairly all the evidence presented and would “conscientiously obey the instructions of the trial court requiring proof beyond a reasonable doubt.” Id. The Schlup Court also distinguished between its standard of actual innocence and a claim that there is insufficient evidence to support a conviction, which would be governed by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under the Jackson standard, the court must credit all the evidence tending to support conviction. See Schlup, 513 U.S. at 330, 115 S.Ct. 851. In this case, the court assumes for purposes of argument that Ackeret’s description of Watkins’ jailhouse confession, despite all its credibility problems, is enough under the Jackson standard to support a conviction. Applying the Schlup standard in this case, however, the district court must make the probabilistic assessment of what reasonable, properly instructed, and conscientious jurors would do if they were presented with all the evidence, including the new DNA evidence. Because the new DNA evidence conclusively disproves the only theory the state presented at trial, all that remains of the state’s case against Watkins is the farfetched suggestion that Watkins truthfully confessed to Ackeret, but did so without ever mentioning that someone else also raped Peggy Sue and was involved in killing her, and that, by sheer happenstance, the samples collected on the vaginal swab collected exactly equal amounts of sperm from the two men. Even without the DNA evidence, this was a close case. With the addition of the DNA evidence, and under a standard of proof beyond a reasonable doubt, this court is confident that no reasonable juror would find Watkins guilty of murdering Peggy Sue Altes. In short, in the American criminal justice system, no one should be sentenced to 60 days in prison, let alone 60 years, on the theory and evidence the state relies upon in this case to keep Jerry Watkins in prison. IV. Watkins’ Claims that the Prosecution Suppressed Evidence Watkins does not seek habeas relief on a free-standing claim of actual innocence, as was the case in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Instead, Watkins contends his trial was tainted by serious and prejudicial constitutional error, so that the courts cannot have confidence in the outcome of the trial. See Schlup v. Delo, 513 U.S. at 314—17, 115 S.Ct. 851 (distinguishing such a claim of innocence combined with constitutional error from the free-standing claim of innocence in Herrera, where no constitutional errors were identified). Watkins has raised several constitutional claims among his amended claims. The court needs to reach only his claims that he was denied a fair trial and due process of law when the prosecution suppressed exculpatory evidence. Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the government in a criminal prosecution must turn over to the defense potentially exculpatory evidence. Accord, United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) {Brady applies to impeachment evidence); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) {Brady applies even in absence of request for the evidence by the accused). Brady is founded upon the most basic of constitutional guarantees to a person accused of a crime: a right to due process of law and a fair trial. Very simply, in our system of criminal justice, the government is not entitled to send a person to prison while it conceals from the accused any evidence that is material and tends to show he is not guilty. Although “the attorney for the sovereign must prosecute the accused with earnestness and vigor, he must always be faithful to his client’s overriding interest that ‘justice shall be done.’ He is the ‘servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.’ ” United States v. Agurs, 427 U.S. at 110-11, 96 S.Ct. 2392, quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). A Brady claim has three essential elements. First, the evidence in question must be favorable to the accused, either because it is exculpatory or because it tends to impeach the credibility of a prosecution witness. Second, the evidence must have been suppressed by the prosecution, either willfully or inadvertently. The defendant need not show that the prosecutor intentionally suppressed the information. See Agurs, 427 U.S. at 110, 96 S.Ct. 2392 (Brady violation depends on “the character of the evidence, not the character of the prosecutor”). Third, prejudice must have resulted, which means the petitioner must show “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280, 119 S.Ct. at 1948, quoting Bagley, 473 U.S. at 682, 105 S.Ct. 3375. The question of prejudice is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” 527 U.S. at 288, 119 S.Ct at 1952, quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Watkins has identified several categories of exculpatory evidence that the prosecution failed to disclose to his trial lawyers: A. Evidence from Jonathan Barger on the circumstances of Peggy Sue’s abduction. B. Evidence of other potential suspects, including the Munson brothers and the Beaver brothers. C. Evidence that another potential suspect had taken and, unlike Watkins, failed a polygraph test about Peggy Sue’s murder. D. Evidence that law enforcement officers had shown Dennis Ackeret pictures of Peggy Sue’s body and had taken him to the site where she was killed; that placing Ackeret with Watkins in a cell had been contrary to a direct, specific order of the Marion County Jail commander; and that Ackeret received undisclosed benefits for his testimony against Watkins. Watkins easily satisfies the first element under Brady. The evidence from Barger, the evidence of other potential suspects, and the evidence that another suspect failed a polygraph test are all plainly exculpatory items that should have been disclosed. Correspondence and other records relating to Ackeret are impeaching and also should have been disclosed. Also, if Ackeret in fact was shown pictures of the body and was taken to the site of the murder, that would be explosive impeachment evidence. Watkins also satisfies the second element of Brady — the state suppressed these materials. Watkins discovered this evidence not in the prosecutors’ files but in the files of the Hancock County Sheriffs Department in the course of counsel’s investigation after appointment by the court in this case. The location of the information makes no difference. Under Brady, the prosecution’s obligation extends to information known to investigating agencies and officers. See Crivens v. Roth, 172 F.3d 991, 996 (7th Cir.1999) (reversing denial of habeas relief based on Brady violation); United States v. Morris, 80 F.3d 1151, 1169 (7th Cir.1996); Carey v. Duckworth, 738 F.2d 875, 877-78 (7th Cir.1984) (“a prosecutor’s office cannot get around Brady by keeping itself in ignorance, or compartmentalizing information about different aspects of a case”). “[T]he 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.” United States v. McVeigh, 923 F.Supp. 1310, 1313 (D.Colo.1996), quoting Kyles, 514 U.S. at 437, 115 S.Ct. 1555. The state does not contend any of this evidence was available to Watkins before his state court proceedings had come to an end. Thus, it cannot be said here that Watkins “failed to develop the factual basis” of his Brady claims in the state courts. Cf. Michael Williams v. Taylor, — U.S. -, -, 120 S.Ct. 1479, 1491, 146 L.Ed.2d 435 (2000) (petitioner “failed to develop the factual basis” for Brady claim where record showed his attorney in state court was familiar with “suppressed” report and should have recognized potential Brady claim then). Five months before trial, Watkins’ lawyers served specific discovery requests on the prosecutor that should have caused him to disclose the interview notes with Barger, the interview notes regarding the Munson and Beaver brothers, the results of any polygraph tests, and correspondence and other information relating to Dennis