                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                   March 3, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-70011




                           ANTHONY GRAVES,

                                             Petitioner - Appellant,

                               versus

                     DOUG DRETKE, Director,
 Texas Department of Criminal Justice, Correctional Institutions
                            Division,

                                               Respondent, Appellee.


          Appeal from the United States District Court
               for the Southern District of Texas



Before DAVIS, WIENER, and GARZA, Circuit Judges:

W. EUGENE DAVIS, Circuit Judge:

     Petitioner Anthony Graves appeals the district court’s

denial of his writ of habeas corpus.    Because we conclude that

the statements suppressed from the defense were both exculpatory

and material, we reverse the judgment of the district court with

instructions to grant Graves’ writ of habeas corpus.

                                  I.

     Anthony Graves was convicted of capital murder and sentenced

to death in 1994 for the capital offense of murdering six people

in the same transaction.   The procedural history of Graves’
                            No. 04-41009
                                 -2-

conviction, post-conviction appeals and writ petitions is

presented in our previous opinions addressing Graves’ application

for certificate of appealability.    This court originally granted

COA only on Graves’ Brady claim that the state failed to disclose

to Graves that key prosecution witness and Graves’ co-defendant

Robert Earl Carter informed the district attorney that Graves was

not involved in the charged crime on the day before he testified

to the contrary at Graves’ trial.     Graves v. Cockrell, 351 F.3d

143 (5th Cir. 2003)(“Graves I”).    On rehearing, this court

modified its order and also granted COA on Graves' claim that the

state's failure to disclose Carter's alleged statement

implicating his wife in the crimes violated Graves' rights under

Brady.   Graves v. Cockrell, 351 F.3d 156 (5th Cir. 2003)(“Graves

II”).    The case was remanded to the district court

     for an evidentiary hearing to determine: (l) the
     substance of the alleged statement described above,
     along with Carter's statement allegedly exonerating
     Graves; (2) whether Graves was aware of these
     statements or exercised due diligence to discover these
     statements; (3) whether the state's failure to disclose
     these statements was material to Graves' defense under
     Brady; and (4) for a determination of whether Graves is
     entitled to relief on these claims.

Graves II, 351 F.3d at 159.    COA was denied on all other claims.

     On remand, an evidentiary hearing was held before Magistrate

Judge Froeschner who, after reviewing briefly the facts of the

crime, made the following factual findings in his report and

recommendation.

          Carter’s wife, Cookie, was also indicted for the
     offense of capital murder. Attorneys Calvin Garvie and
                          No. 04-41009
                               -3-

     Lydia Clay-Jackson, who defended Graves at trial,
     believed this indictment to be a sham based on false
     evidence presented to the grand jury and obtained only
     in order to pressure Carter to testify against Graves.
     Evidentiary Hearing Transcript (“EHT”) at 129, 168.
     Nevertheless, Burleson Country District Attorney
     Charles Sebesta, who prosecuted Graves, insisted that
     the State believed from early on that Cookie
     participated in the killings and that all evidence
     pointed to the involvement of three people. Id. at 57,
     98. Indeed, the State’s theory from the beginning of
     the trial was that at least three people had acted
     together in the murders. Id. at 174.1 Texas Ranger
     Coffman testified at trial that his investigation
     showed “at least three and possibly four” perpetrators
     were in the Davis home when the murders occurred.
     Trial Transcript (“TT”), vol. 38 at 3728.

          Prior to the beginning of Graves’ trial, the
     District Attorney’s office had been in negotiations
     with Carter and his appellate attorney for Carter’s
     testimony against Graves. According to Sebesta, no
     final agreement on the terms had been reached prior to
     Carter’s arrival in Brazoria County for Graves’ trial,
     although any final plan was to involve the use of a
     polygraph exam before he testified. Id. at 51. The
     early discussions also involved Carter’s condition that
     the State would not ask him questions about his wife’s
     role in the murders. Id. at 54.

          Sebesta met with Carter in the early evening of
     October 21, 1994.2 According to Sebesta, Carter almost
     immediately claimed, “I did it all myself, Mr. Sebesta.
     I did it all myself.” Id. at 60. When Sebesta stated
     that he knew that was not true because of the number of
     weapons used, Carter quickly changed his story and
     claimed that he committed the murders with Graves and a
     third man called “Red.” Id. at 61, 94, 95. Carter had
     earlier implicated a person named “Red” during the
     murder investigation, and the State believed that
     Theresa Carter may have been known by that nickname.
     Petitioner’s Ex. 9 at 24. When Sebesta proposed that


     1
        This theory appears to be based on the number of victims,
six, and the number of murder weapons, three (a gun, knife and
hammer), not on any specific physical evidence.
     2
        This was the evening of the second day of the
guilt/innocence phase of the trial.
                     No. 04-41009
                          -4-

“Red” was actually Cookie, Carter denied it and agreed
to take a polygraph exam. EHT at 95.

     Since the polygraph examiner had been out sick
that day, he was called to come in to administer the
exam. Id. at 96. The report states that Carter signed
a polygraph release statement, had the exam explained
to him, and then changed his story once more before the
exam was given by stating that he had killed the Davis
family with Graves but without “Red.” Petitioner’s
Ex.9 at tab 4. The interviewer then posed the
following questions to Carter: (1) “[W]as your wife,
Theresa, with you [at the time of the murders]?” and
(2) “[W]hen you refer to ‘Red’ in your statement, are
you taking about your wife, Theresa?” Id. Carter
answered “no” to both questions. The polygraph
examiner concluded that Carter was not being truthful
in either response. Id. When the polygraph results
were explained to him, Carter once more changed his
story. He now admitted that Cookie was involved in the
murders with himself and Graves. He also stated that
he had invented the character “Red” but later admitted
that Cookie was sometimes called “Red.” Id.    When
Sebesta asked him if Theresa had used the hammer in the
murders, Carter answered “yes.” EHT at 96.

     In addition to the tentative deal to forego
questions about Cookie in exchange for testifying
against Graves, the State had also been working on a
broader agreement that would allow Carter to accept a
life sentence rather than death if his case were
reversed in appeal. This required Carter to testify
against both Graves and Cookie. Id. at 67. By the
time the October 21 meeting concluded, he had
tentatively assented to do so, though no final
agreement was reached. Id. at 62, 103, 105. The next
morning, however, Carter refused to testify against
Cookie and reverted to the initial terms already worked
out with the State. Both Carter and Sebesta then
accepted the tentative agreement as the final deal for
his testimony.

     At the evidentiary hearing, Garvie denied that he
knew before, or at any time during, trial that Carter
had told Sebesta he killed the Davis family himself.
Sebesta testified that he mentioned the statement to
Garvie on the morning Carter testified. Id. at 149.
The Court accepts Garvie’s version of this event based
on his credibility as a witness and as being consistent
with his vigorous defense of Graves at trial. Sebesta
                           No. 04-41009
                                -5-

     did reveal part of the polygraph results on the morning
     of October 22 when he told the trial judge: “last night
     at 8:30 Mr. Carter took a polygraph[,] and the basic
     question involved his wife, Theresa. It shows
     deception on that polygraph examination. But,
     obviously, we can’t go into polygraphs here, but I
     think counsel is certainly entitled to know that.” TT,
     vol. 35 at 3360. Garvie asked no questions about what
     the polygraph involved. Garvie’s co-counsel testified
     that it did not occur to the defense to inquire into
     Sebesta’s statement because they believed the
     indictment against Cookie was unfounded. EHT at 134.
     Nor did it fit the defense’s theory of the case.
     According to Ms. Clay-Jackson, the defense thought that
     at least two people were involved in the killings but
     that Cookie was not one of them. Id. at 122. The
     State then called Carter to the stand and revealed to
     the jury that he was testifying in exchange for an
     agreement that questions would not be asked about his
     wife. TT, vol. 35 at 3429.

          Graves’ habeas attorneys appear to have first
     learned of Carter’s statement, “I did it all myself,”
     in 1998. On June 19, 1998, Graves’ former attorney
     took a deposition from Carter in which he claimed to
     have acted alone. Ex parte Graves, No. 40,812-01 at 97
     ff. That statement was excluded from the record by the
     state court as inherently unreliable because Graves’
     attorney failed to notify the State, as required by
     law, in order to allow cross-examination. Carter again
     recanted his trial testimony in a May 18, 2000,
     deposition attended by both Sebesta and Graves’ current
     counsel. Sebesta later appeared on the Geraldo Rivera
     show Deadly Justice on September 3, 2000, and repeated
     Carter’s self-confession. Sebesta stated: “yes, and at
     that point he [Carter] did tell us, ‘Oh, I did it
     myself. I did it.’ He did tell us that.” Petitioner’s
     Ex. 1.

     The magistrate judge found that Sebesta did not reveal

Carter’s statement that he committed the murders alone to the

defense and that because Graves’ attorneys had no way of knowing

about the statement, they had no reason to exercise due diligence

to discover it.   The magistrate also found that this statement

was not material because Carter’s claim that he acted alone
                          No. 04-41009
                               -6-

contradicted the evidence and because the jury already had

considerable evidence of Carter’s multiple inconsistencies and

credibility issues.

     As to the statement linking Carter’s wife Cookie as a direct

participant in the crimes, the magistrate found that the defense

did not exercise due diligence to discover the statement after

Sebesta told them about the polygraph results.   He also found

that the statement is not exculpatory because it implicated

Graves based on the government’s three person theory.   The

statement would also have contradicted the testimony of one of

Graves’ witnesses who testified that Cookie and Graves were not

close and that Cookie was home at the time of the murders.

     Considering the effect of the statements together, the

magistrate found that the same conclusion would be reached.    The

three person version of the crime, which implicated Cookie, was

most consistent with the State’s versions of events and would

have reinforced prior statements by Carter also implicating

Graves.

     The district court considered Graves’ objections to the

magistrate’s report and recommendation, dismissed them all and

accepted the magistrate’s report, denying Graves’ Brady claims.

The district court also denied Graves’ Motion to Abate, which is

not raised as an issue in this appeal.   Graves appeals.

                              II.
                            No. 04-41009
                                 -7-

     In a federal habeas corpus appeal, we review the district

court’s findings of fact for clear error and its conclusions of

law de novo.   Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir.

2001).   Whether evidence is material under Brady is a mixed

question of law and fact.   Summers v. Dretke, 431 F.3d 861 (5th

Cir. 2005), citing Trevino v. Johnson, 168 F.3d 173, 185 (5th

Cir. 1999).

     Both of Graves’ Brady claims were dismissed by the Texas

courts as abuses of the writ, i.e. on procedural grounds.3

Because these claims were not adjudicated on the merits in State

court, a prerequisite for the applicability of 28 U.S.C. 2254(d),

the heightened standard of review provided by the Anti-Terrorism

and Effective Death Penalty Act (“AEDPA”) does not apply.      Id. at

946-47; Jones v. Jones, 163 F.3d 285, 299-300 (5th Cir. 1998);

Fisher v. Texas, 169 F.3d 295, 299-300 (5th Cir. 1999), citing

Larry W. Yackle, A Primer on the New Habeas Corpus Statute, 44

BUFF. L. REV. 381, 420-21 & n. 129 (1996)(stating that state

court decision that claim was procedurally barred cannot be

adjudication on the merits, for purposes of AEDPA).

                                III.



     3
        In our decisions granting COA, we concluded that Graves
had established cause for the procedural default because the
state did not disclose the statements until after Graves filed
his initial habeas petition. See Graves I, 351 F.3d at 154;
Graves II, 351 F.3d at 158. Graves’ petition was remanded to the
federal district court for an evidentiary hearing and a decision
on the merits of his Brady claims, from which Graves now appeals.
                             No. 04-41009
                                  -8-

     In Brady v Maryland, 373 U.S. 83, 87 (1963), the Supreme

Court held that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where

the evidence is material either to guilt or punishment,

irrespective of the good faith or bad faith of the prosecution.”

Evidence is material “if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different.”       Kyles v. Whitley, 514

U.S. 419, 433 (1995).     Brady applies equally to evidence relevant

to the credibility of a key witness in the state’s case against a

defendant.     Giglio v. United States, 405 U.S. 150 (1972).

     The Kyles decision emphasizes four aspects of materiality.

First, “a showing of materiality does not require demonstration

by a preponderance that disclosure of the suppressed evidence

would have resulted ultimately in the defendant’s acquittal

(whether based on the presence of reasonable doubt or acceptance

of an explanation for the crime that does not inculpate the

defendant).”    514 U.S. at 434.     The question is not whether the

defendant would have received a different verdict with the

disclosed evidence, but “whether in its absence he received a

fair trial, understood as a trial resulting in a verdict worthy

of confidence.” Id.     A “reasonable probability of a different

result” is shown when the suppression “undermines confidence in

the outcome of the trial.”     Id.
                            No. 04-41009
                                 -9-

     Second, the materiality test is not a test of the

sufficiency of the evidence.    The defendant need not demonstrate

that after discounting the inculpatory evidence by the

undisclosed evidence that there would not have been enough

evidence to sustain the conviction.    Rather, a Brady violation is

established by showing “that the favorable evidence could

reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict.”    Id. at 435.

Third, harmless error analysis does not apply.    Id,   Fourth,

“materiality to be stressed here is its definition in terms of

suppressed evidence considered collectively, not item by item.”

Id. at 436.

     Graves bases his Brady claims on two suppressed statements

the state admits Carter made on the evening before Carter

testified at Graves’ trial - first, that Carter committed the

crimes alone, and second, that Carter’s wife Cookie was an active

participant in the murders.

     No one disputes that Carter was the state’s star witness.

Graves made no self-incriminating statements to the police before

his trial.    He testified before the grand jury denying all

involvement and explaining his whereabouts on the night of the

murders.   The only potentially incriminating statements allegedly

made by Graves were heard over the jailhouse intercom system.

The persons reporting these statements were effectively cross-

examined on the reliability of the intercom system, their ability
                           No. 04-41009
                               -10-

to recognize Graves’ voice since his cell could not be seen from

their listening post, and their failure to make contemporaneous

reports of the comments.

     The only physical evidence tied to Graves that was

marginally linked to the crimes was a switchblade knife brought

forward by Graves’ former boss that was identical to one that he

had given to Graves as a gift.   The medical examiner testified

that the knife wounds on the victims were consistent with that

knife or a knife with a similar blade.    Graves’ medical expert

testified that a wide range of knives with similar dimensions to

the switchblade were also consistent with the victims’ wounds

including holes in skull caps of some of the victims.   None of

the murder weapons were recovered.   Thus, it is obvious from the

record that the state relied on Carter’s testimony to achieve

Graves’ conviction.   It is in this context that the materiality

of the suppressed statements must be examined.

a.   The suppressed statement by Carter that he committed the
     crimes alone.

     The district court found that Graves was not aware of

Carter’s statement that he committed the crime by himself but

found that the statement was not material.4   Our original

assessment of this statement was that it “was extremely favorable



     4
        District Attorney Sebesta contradicted Graves’ counsel
and testified at the habeas hearing that he told Graves’ defense
counsel Garvie of this statement outside the courtroom the
morning after Carter made the statement. The district court did
not find Sebesta credible on this point.
                           No. 04-41009
                               -11-

to Graves and would have provided powerful ammunition for counsel

to use in cross-examining Carter.” Graves I, 351 F.3d at 155.

Although we did not have a completely accurate version of the

events surrounding the statement at the time of our original

opinion, under the facts as found by the district court on remand

we reach the same conclusion.

     Carter’s statement that he acted alone in committing the

murders is particularly significant because it was the first

statement Carter made that implicated himself without also

implicating Graves.   The only other statement Carter made pre-

trial exculpating Graves was before the grand jury.   In that

statement Carter claimed that neither he nor Graves was involved

in the murders.   At trial the state recognized that its case

depended on the credibility of Carter and the prosecutor

emphasized Carter’s consistency in his various statements in

naming Graves as an accomplice.   In Carter’s grand jury testimony

Carter testified that he only gave Graves’ name to investigators

because he was coerced.5   The prosecutor explained Carter’s grand



     5
        Before the grand jury, Carter testified as follows:
          I couldn’t harm anybody, but during interrogation,
     between seven and eight hours or so, I was told that
     they got enough evidence on me to give me the death
     penalty. I know I haven’t done anything wrong. I know
     I wasn’t in Somerville like they say I was. They say
     they know that I didn’t do it, but I know who did it
     and they wanted me to give a name so I tried to tell
     them that I don’t know anybody.
          And by being pressured, being hurt, confused and
     didn’t know what to think, I said Anthony Graves off
     the top of my head.
                           No. 04-41009
                               -12-

jury testimony by pointing out that Carter’s testimony, that

neither he nor Graves was involved, followed threats by Graves.6

Carter’s suppressed mid-trial statement exculpating Graves was

not coerced and would have undercut the state’s argument that

Carter did not implicate Graves before the grand jury because

Graves threatened him.   The state’s case depended on the jury

accepting Carter’s testimony.   Given the number of inconsistent

statements Carter had given, the state faced a difficult job of

persuading the jury that Carter was a credible witness, even

without the suppressed statement.   Had the defense been able to

cross-examine Carter on the suppressed statement, this may well

have swayed one or more jurors to reject Carter’s trial version

of the events.

     Perhaps even more egregious than District Attorney Sebesta’s

failure to disclose Carter’s most recent statement is his

deliberate trial tactic of eliciting testimony from Carter and

the chief investigating officer, Ranger Coffman, that the D.A.

knew was false and designed affirmatively to lead the jury to



     6
       After eliciting testimony from Carter that Graves had
threatened him physically and verbally while they were housed in
the Burleson County Jail, the following exchange took place
between Sebesta and Carter as Carter testified at Graves’ trial:
     Sebesta: What did you do when you went to the Burleson
               County grand jury?
     Carter:   Lied.
     Sebesta: Why did you lie?
     Carter:   Because I was afraid.
     Sebesta: How did you go about lying to them?
     Carter:   Saying that I made up the whole story, that it
               didn’t take place.
                           No. 04-41009
                               -13-

believe that Carter made no additional statement tending to

exculpate Graves.   District Attorney Sebesta asked Carter to

confirm that, with the exception of his grand jury testimony

where he denied everything, he had always implicated Graves as

being with him in committing the murders.    Carter answered in the

affirmative.   Sebesta also asked Ranger Coffman, after Carter

testified, to confirm that all of Carter’s statements except the

grand jury testimony implicated Graves.   Sebesta also confirmed

through Ranger Coffman that he understood his obligation to bring

to the prosecutor’s attention any evidence favorable to the

defense.   Although there is no factual finding regarding whether

Ranger Coffman knew of Carter’s statement that he committed the

crimes alone, Sebesta clearly knew of the statement and used

Ranger Coffman as well as Carter to present a picture of Carter’s

consistency in naming Graves that Sebesta clearly knew was false.

b.   The suppressed statement by Carter that Cookie was an active
     participant in the murders.

     The state stipulated that Carter told Sebesta, “Yes, Cookie

was there; yes Cookie had the hammer.”    This statement was also

made the night before Carter testified in Graves’ trial.     Sebesta

did not inform Graves’ counsel of this statement.   He did

disclose to the court and counsel that Carter had failed a

polygraph regarding Cookie’s involvement.7   The district court


     7
       Sebesta made the following statement: “There is something
I need to put on the record from a [sic] exculpatory standpoint.
It cannot be used, but last night at 8:30 Mr. Carter took a
polygraph and the basic question involved his wife, Theresa. It
                            No. 04-41009
                                -14-

found that after hearing about the polygraph, Graves did not

exercise due diligence to discover the substance of the

statement.    The district court also found that the statement was

not exculpatory because it did not exculpate Graves.    Rather it

was consistent with the state’s three person theory, that the

crime was committed by Carter, Cookie and Graves.    We disagree on

all points.

Due Diligence?

     The district court found that Sebesta’s in-court statement

“was not so vague in light of the surrounding circumstances that

they should not have inquired about it further.”    However,

Sebesta’s statement did not reveal or even imply that Carter gave

a statement affirmatively naming Cookie as an active participant

in the murders.   The defense had specifically requested any

information related to any party, other than Graves and Carter,

who the state alleged was involved in the crime.    They had no

evidence that Cookie was involved in the crime and viewed her

indictment as a tool to get Carter to testify.    This assumption

was confirmed by Sebesta’s discovery response.    Sebesta’s

response to the defense’s discovery request was that “there were

some names that were given” to the State, but that “[t]hey’re not

necessarily parties to the crime but they are people who may have

- may possibly have some information on those.”    Sebesta’s


shows deception on that polygraph examination. But, obviously,
we can’t go into polygraphs here, but I think Counsel is
certainly entitled to know that.”
                            No. 04-41009
                                -15-

questioning of Carter at Graves’ trial about Cookie’s involvement

also reinforced defense counsel’s belief that she was involved,

if at all, after the crimes were committed.   In Sebesta’s

questioning of Carter, Sebesta asked Carter to confirm their

agreement that he would not ask any questions about his wife and

to confirm that he had “not asked [him] any question about what

she may or may not know about it.”   When the defense cross-

examined Carter, they asked about Cookie’s whereabouts and who

possessed the hammer.   Carter’s testimony was obviously different

than the statement he gave Sebesta the previous night that Cookie

was there and Cookie had the hammer.

     We disagree with the district court’s conclusion that the

defense did not exercise due diligence to discover the statement

regarding Cookie’s involvement in the crimes.   Graves’ counsel

had specifically requested the information disclosed in the

statement.    We view Sebesta’s statement regarding the polygraph,

his discovery responses and questioning of Carter as misleading

and a deliberate attempt to avoid disclosure of evidence of

Cookie’s direct involvement.   At a minimum, Sebesta’s minimal

disclosure was insufficient to put the defense on notice to

inquire further, particularly in light of the state’s discovery

disclosure.

Exculpatory?

     Graves next challenges the district court’s conclusion that

the statement regarding Cookie’s involvement is not exculpatory
                           No. 04-41009
                               -16-

because the statement implicated Graves as well.8   The district

court found that the statement is not exculpatory because it

implicated Graves based on the government’s three person theory.

It also found that the statement would have contradicted the

testimony of one of Graves’ witnesses, Tametra Ray, who testified

that Cookie was home at the time of the murders.    Again, we

disagree.

     The statement regarding Cookie’s direct involvement in the

crime is exculpatory for several reasons.   First, each party’s

theory about how many people were actively involved in the crime

is just a theory based on the number of people killed and the

number of weapons used.   The defense had submitted that two

people were probably involved and had specifically requested any

information related to any party, other than Graves and Carter,

who the state alleged was involved in the crime.    Although Cookie

had been indicted, the defense viewed the indictment as a tool to

pressure Carter into testifying.   As we noted in our prior

opinion, “if Graves had been furnished with Carter’s statement,

it could have provided him with an argument that those two

persons were Carter and his wife rather than Carter and Graves.”


     8
        Graves also argues that the district court erred in
concluding that in this suppressed statement, Carter named both
Cookie and Graves as participants in the murders. Graves views
this suppressed statement as one in which Carter named only his
wife Cookie as a participant in the crimes. The district court
found that after the polygraph examination Carter admitted that
Cookie was involved in the murders with him and Graves. Based on
our review of the record of the habeas hearing, that factual
finding is not clearly erroneous.
                            No. 04-41009
                                -17-

Graves II, 351 F.3d at 159.    Also, Carter’s statement, placing

Cookie directly at the scene and actively involved in the

murders, puts his deal with the state to testify only on the

condition that he not be questioned about Cookie’s involvement in

a different light.    It provides a stronger argument to Graves

that Carter was lying about Graves involvement to save Cookie.

     The district court did not reach the issue of materiality of

the statement.    That issue will be discussed in the following

section regarding the effect of the two statements considered

together.

     c.     The statements considered together?

     The sole remaining issue under Graves’ Brady claim is

whether, considered together, the two statements - Carter’s claim

that he did it himself and Carter’s statement directly

implicating his wife Cookie in the murders - are material.      We

conclude that they are.    If both statements had been timely

furnished to Graves, he could have persuasively argued that (1)

the murders were committed by Carter alone or by Carter and

Cookie; and (2) Carter’s plan from the beginning was to exonerate

Cookie, but a story that he acted alone was not believable, so he

implicated Graves so the prosecution would accept his story and

decline to prosecute Cookie.

     The state argues that the combined statements are not

material because they are inconsistent and could have been

damaging to Graves if the jury believed that the most credible
                             No. 04-41009
                                 -18-

account of the murders involved three killers, Carter, Cookie and

Graves.    The problem with the state’s argument is that it

analyzes the significance of the suppressed evidence against a

backdrop of how the defense presented its case at trial without

the suppressed statements.    If the two statements had been

revealed, the defense’s approach could have been much different

(as set forth above) and probably highly effective.

     Case law from the Supreme Court is supportive of a finding

of materiality on these facts - particularly because the case

against Graves rests almost entirely on Carter’s testimony and

because the state presented testimony inconsistent with the two

suppressed statements.     In Giglio v. United States, 405 U.S. 150

(1972), the Supreme Court reversed the defendant’s judgment of

conviction and remanded for a new trial because the prosecutor

failed to disclose a promise of leniency to a key witness.      The

court concluded that the suppression affected the co-

conspirator’s credibility which was an important issue in the

case and therefore material.

     In Banks v. Dretke, 540 U.S. 668 (2004), the Supreme Court

reversed this court’s denial of COA to the defendant on his Brady

claim.    The state withheld evidence that would have allowed

defendant to show that two essential prosecution witnesses had

been coached by police and prosecutors before they testified and

also that they were paid informants.    In addition, prosecutors

allowed testimony that they were not coached to stand uncorrected
                           No. 04-41009
                               -19-

at trial.   In Kyles v. Whitley, 514 U.S. 419 (1995), the

defendant’s conviction was reversed and remanded for a new trial.

The prosecution had suppressed statements of key witnesses and an

informant who were not called to testify resulting in a Brady

violation because their statements had significant impeachment

value.   Graves’ case presents a cumulation of the elements found

violative of a defendant’s right to exculpatory evidence in the

above cases.

                                IV.

     Because the state suppressed two statements of Carter, its

most important witness that were inconsistent with Carter’s trial

testimony, and then presented false, misleading testimony at

trial that was inconsistent with the suppressed facts, we have no

trouble concluding that the suppressed statements are material.

Carter made several inconsistent statements throughout the

investigation and pre-trial period.    In some he denied all

involvement, in some he implicated himself and Graves, and then,

just before he testified against Graves, he gave the statements

at issue in this appeal accepting full responsibility as the sole

murderer and another statement placing his wife Cookie as an

active participant in the murders.    If the defense had known

about the statement placing Cookie at the scene and given

Carter’s continuing condition that he would only testify if he

were not asked about Cookie’s involvement, the defense could have

explained every statement implicating Graves as a means of
                              No. 04-41009
                                  -20-

protecting Cookie.   As indicated above, these statements are

particularly important in this case because Graves’ conviction

rests almost entirely on Carter’s testimony and there is no

direct evidence linking him with Carter or with the murder scene

other than Carter’s testimony.     In addition, Carter’s statement

that he committed the crimes alone is important as the only

statement he made exculpating Graves while implicating himself.

The combination of these facts leads us to conclude “that the

favorable evidence could reasonably be taken to put the whole

case in such a different light as to undermine confidence in the

verdict.”   Kyles, 314 U.S. at 435.    Stated differently,

disclosure of the statements “would have resulted in a markedly

weaker case for the prosecution and a markedly stronger one for

the defense.”   Id. at 441.

     For the foregoing reasons, the judgment of the District

Court is reversed and the case is remanded with instructions to

grant the writ of habeas corpus unless the state proceeds to

retry petitioner within a reasonable time.

     WRIT GRANTED.   REMANDED.
