266 F.3d 12 (1st Cir. 2001)
JOHN M. McCAMBRIDGE, Petitioner, Appellant,v.TIMOTHY HALL, SUPERINTENDENT, Respondent, Appellee.
No. 00-1621
United States Court of Appeals For the First Circuit
Heard Nov. 29, 2000Decided September 24, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge][Copyrighted Material Omitted][Copyrighted Material Omitted]
John M. McCambridge, pro se.
James J. Arguin, Assistant Attorney General, Criminal  Bureau, on brief for appellee.
Before  Lipez, Circuit Judge, Campbell and Cyr, Senior Circuit Judges.
LIPEZ, Circuit Judge.


1
John McCambridge appeals pro se from  the denial of his petition for a writ of habeas corpus by the district  court.  He claims that his conviction in the Massachusetts state court  for manslaughter is in violation of his constitutional rights because  the prosecution failed to disclose exculpatory evidence and then used  the absence of that evidence to impeach his credibility during closing  argument.  In determining whether McCambridge is entitled to a writ of  habeas corpus pursuant to 28 U.S.C. § 2254(d)(1),1 we examine the  opinion of the Massachusetts Appeals Court affirming his conviction. We conclude that the Appeals Court reached a decision that was both  contrary to and an unreasonable application of clearly established  federal law.  Accordingly, we reverse the judgment of the district  court.

I.

2
At trial, the parties agreed that McCambridge shot and killed  Richard Doyle during the early morning of November 11, 1993, between  the time they left a bar in Cambridge, Massachusetts, and the time the  van in which they were riding crashed.  The Commonwealth charged  McCambridge with first degree murder and attempted to prove that  McCambridge shot Doyle shortly after they left the bar and that  McCambridge was driving at the time of the accident.


3
McCambridge claimed self-defense, testifying that Doyle was  driving the van, and became angry when McCambridge called him a name  that referenced Doyle's earlier conviction for child abuse.  Further,  McCambridge testified that while still driving the vehicle Doyle put a  loaded and cocked gun to McCambridge's head.  Then McCambridge said  that he pushed Doyle's gun away with one hand, located another gun from  the dashboard and fired it at Doyle with his other hand.  The van  crashed moments later.  Following the accident, McCambridge was found  wedged in the driver's seat of the van, and Doyle's body, still warm,  was found pinned under a wheel of the vehicle.


4
The Commonwealth charged McCambridge with first degree  murder, weapons violations, and vehicular offenses.  Following a four-day trial, the jury found McCambridge guilty of manslaughter, illegal  possession of a firearm and two of the three vehicular offenses  charged.2  The Massachusetts Appeals Court affirmed the conviction for  manslaughter,3 and the Supreme Judicial Court declined further review. McCambridge has now served over six years of a fifteen to twenty year  sentence.


5
McCambridge filed a petition for a writ of habeas corpus in  federal district court.  The court denied his petition.  We granted a  certificate of appealability limited to the claim that the prosecution  had failed to comply with the disclosure obligations imposed by Brady v. Maryland, 373 U.S. 83 (1963),4 and now reverse.

II.

6
McCambridge asserts that the Commonwealth violated the  requirements of Brady in not disclosing exculpatory evidence.  "There  are three components of a true Brady violation: 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, 281-82 (1999). Additionally, because McCambridge is seeking relief from a state court  judgment pursuant to 28 U.S.C. § 2254, he must also satisfy the  statutory requirement that he demonstrate his eligibility for a writ of  habeas corpus.  "Habeas review involves the layering of two standards. The habeas question of whether the state court decision is objectively  unreasonable is layered on top of the underlying standard governing the  constitutional right asserted."  Hurtado v. Tucker, 245 F.3d 7, 16 (1st  Cir. 2001).


7
Accordingly, McCambridge must satisfy two legal standards. He must show that the Commonwealth denied his constitutional rights  under Brady, and he must demonstrate that the Massachusetts Appeals  Court made a determination that was contrary to or an unreasonable  application of federal law in rejecting that claim, see 28 U.S.C. §  2254(d)(1).  The Appeals Court rejected McCambridge's Brady claim on  two grounds.  See Commonwealth v. McCambridge, 690 N.E.2d 470, 475  (Mass. App. Ct. 1998).  First, it ruled that McCambridge was required  to object when the prosecutor refused to disclose the exculpatory  evidence sought, namely, evidence of Doyle's conviction for child  abuse.  Second, the court ruled that McCambridge could not show  prejudice from the prosecutor's wrongful suppression of that evidence. The court resolved these issues with brief analysis, citing only one  Massachusetts case as authority:


8
While the defendant pressed for the introduction  of the victim's criminal record at trial, he did  not object when the judge did not order its  production or request that the record be marked  for identification.  He cannot now be heard to  complain that the judge failed to do so at the  sentencing stage.5


9
In any event, assuming without deciding that the  prosecutor should have produced the victim's  record, there was no prejudice to the defendant  because he was aware of the victim's record and  was prepared to offer such evidence at trial. More importantly, there was no prejudice to the  defendant.  By convicting the defendant of  manslaughter, the jury obviously credited the  defendant's testimony that the struggle in the  van was precipitated by the defendant's remark  about this offense to Doyle. See Commonwealth v. Tucceri, 412 Mass. 401, 412-414, 589 N.E.2d 1216  (1992).


10
Id.   Examining both of the state court's conclusions in turn, we hold  that the determination of the Appeals Court that McCambridge should  have objected is contrary to clearly established federal law, and that  the court's conclusion that McCambridge was not prejudiced is an  unreasonable application of that law.

III. Nondisclosure of Brady Material

11
The Supreme Court held in Brady v. Maryland that "the  suppression by the prosecution of evidence favorable to an accused . .  . violates due process where the evidence is material either to guilt  or to punishment, irrespective of the good faith or bad faith of the  prosecution."  373 U.S. at 87.  The favorable evidence at issue here is  the criminal record of the victim, Doyle.6  McCambridge testified at  trial that Doyle became violent when McCambridge called Doyle a name  that referred to Doyle's conviction for child abuse.  McCambridge also  described an incident a few months prior to the accident where he asked  Doyle whether he had been convicted of child abuse and Doyle threatened  to kill him if McCambridge ever mentioned the topic again.  Therefore,  Doyle's criminal conviction related to McCambridge's theory of self-defense because it provided an explanation for why Doyle might have  become violent in the van.  Additionally, McCambridge's testimony about  Doyle's earlier threat was significant in assessing McCambridge's state  of mind at the time of the shooting for purposes of determining whether  he was in reasonable fear of death or serious bodily injury.


12
In charging an unlawful killing, the Commonwealth assumed the  burden of proving that McCambridge did not act in self-defense.  See Commonwealth v. Reed, 691 N.E.2d 560, 563 (Mass. 1998).  The jury might  not have found McCambridge guilty of any wrongful killing if it could  not reject, beyond a reasonable doubt, McCambridge's testimony that he  reasonably perceived that he was in imminent danger of death or serious  bodily harm.  McCambridge's credibility on this self-defense claim and  his perception of Doyle's alleged actions in the van and his earlier  threat were thus potentially determinative of the verdict.


13
Doyle had, in fact, been convicted of and imprisoned for  child neglect.7  Yet, during trial, the prosecutor represented, both to  defense counsel and the trial judge, that there was no such conviction  on Doyle's official record.


14
A. Requests, Representations, and Rulings Regarding the Exculpatory  Evidence


15
The question of Doyle's record arose several times during the  trial.  There were three discussions at the bench. The first sidebar  took place on the third day of the trial when Doyle's brother was  testifying for the Commonwealth.  Defense counsel informed the court  and the prosecutor that McCambridge's testimony about the altercation  in the van would refer to his understanding that Doyle had been  convicted for child abuse.  Defense counsel stated that he saw no  reason to question Doyle's brother about the decedent's conviction  unless the prosecutor was going to argue that McCambridge was lying. The prosecutor said he had not yet decided whether he would challenge  McCambridge's veracity regarding Doyle's conviction.  Due to the  prosecutor's ambivalence about his plans in this regard, the defense  was unable to resolve, at this point, whether to question Doyle's  brother about the conviction. Therefore, the court ordered that the  witness be held over for possible later questioning by the defense. During this initial sidebar, the prosecutor was put on notice that the  record of Doyle's conviction was exculpatory because it corroborated  McCambridge's anticipated testimony.


16
The second sidebar on the issue of Doyle's conviction  occurred during defense counsel's direct examination of McCambridge. The prosecutor objected, on hearsay grounds, to McCambridge's reference  to the conviction when he described the threat allegedly made by Doyle  a month before the killing.  The court overruled the prosecution's  objection on the ground that the testimony was not being offered for  the truth of the conviction, but rather to establish McCambridge's  state of mind with respect to his fear of being killed by Doyle.  The  prosecutor replied that he thought the prejudicial effect of the  evidence outweighed its probative value.  The following exchange took  place:


17
THE COURT: Do we have a conviction on this  charge?


18
DEFENSE: Do I have a certified copy of the  conviction? I do not.  But I assert that it is  true, that he was convicted for this charge. ...  I don't think my brother can say to your Honor  that, in fact, he was not convicted.  I've read  the newspaper articles about it.


19
COURT: Has anyone checked his probation  record?


20
PROSECUTOR: It just says -- it doesn't say  what for.  I have no idea what it's for.


21
COURT: Okay.  I'll tell them that it's not  being offered for the truth of the matter.8


22
The key event during the second sidebar was the prosecutor's  representation that he had looked at Doyle's record but had found it to  be unclear.9


23
The question of the conviction arose again shortly after the  second sidebar. Despite the court's ruling that the jury would be told  that McCambridge's testimony regarding Doyle's conviction was not being  offered for the truth of the matter, the prosecutor attempted to raise  doubts about the fact of the conviction during his cross-examination of  the defendant.


24
PROSECUTOR: You said that you had an  argument with Mr. Doyle sometime prior to this in  September and you said that he was involved in a  problem of child molestation; is that correct?


25
DEFENDANT: I was told that. . . .


26
***


27
PROSECUTOR: You know Mr. Doyle is  deceased; isn't that correct, sir?


28
DEFENDANT: He certainly is.


29
PROSECUTOR: He can't refute your  allegations right now; can he?


30
DEFENSE: Objection to that, your Honor.


31
THE COURT: Sustained.


32
This line of questioning foreshadowed the prosecutor's reference to  Doyle's conviction in closing argument.10  It also explains the concern  expressed by defense counsel at the third sidebar, held on the fourth  day of trial just before the defense rested.


33
At this third and last sidebar, the court again asked the  prosecutor whether he had checked Doyle's record and the defense  requested that the prosecution produce the record.  Defense counsel  also referred to the possibility of recalling Doyle's brother to  establish the conviction, which he again indicated he would not do  unless the prosecutor was going to argue that McCambridge was lying  about it:


34
DEFENSE: He is maligning [the defendant's]  character, you know, as if there is some evidence  in the case that he [the victim] wasn't really in  jail.


35
PROSECUTOR: He wasn't in jail, Judge. .


36
THE COURT: Did you check his record?


37
PROSECUTOR: He wasn't in jail, Judge.


38
THE COURT:  Was he convicted?


39
PROSECUTOR:  No.  No.


40
DEFENSE:  Do you have his record?  Let's  make it part of the


41
PROSECUTOR: No.  I'm not going to make it  a part.  That's your case, sir. . . .  So, as far  as I know, he's never been in jail a day of his  life.


42
* * *


43
DEFENSE: Your Honor, I don't have access  to his criminal record. . . .  So if he's got a  criminal record, this is an important issue, it  seems to me.  I would like it produced so we can  all see whether or not he did have a criminal  record and what, if anything, he was convicted  of.  I'm concerned about it.  I don't want to  make it part of the case.  On the other hand, I  don't want to open it up for argument that I  didn't prove that he had one and, therefore, my  guy was lying.


44
* * *


45
PROSECUTOR: . . . [A]s far as I know,  there is  no record that Mr. Doyle had any  convictions.


46
THE COURT: What do you intend to argue?


47
PROSECUTOR: . . . I am going to argue the  facts of the case, Judge.  That's all I'm going  to argue.


48
THE COURT: There's inferences the jurors  may want to draw from those facts.  Are you


49
PROSECUTOR: But you can't draw an  inference from something where there's no  conviction of a guy.  I mean, the guy  [McCambridge] gets up there and says [Doyle's]  done time when I know he hasn't from the records  that I've seen.  And, if he's got the records, he  can


50
THE COURT: But this was offered really for  state of mind, not for the truth of it, not as to  whether or not he did, in fact, do any time or  anything like that.  Therefore, I don't know if  it's appropriate to argue whether he did or he  didn't.  I am allowing it only for the state of  mind of the defendant.


51
PROSECUTOR: Then that's all I'm going to  argue, Judge.


52
At the third sidebar, defense counsel expressed a willingness to keep  the existence of the conviction out of the case in compliance with the  judge's ruling.  However, he also voiced concern that the prosecutor  would use the absence of evidence confirming the conviction to cast  doubt on McCambridge's credibility. In addition, defense counsel  directly asked the prosecutor for Doyle's record.


53
During these sidebar discussions and rulings, the prosecutor  made two kinds of statements about Doyle's criminal record.  First, the  prosecutor made qualified statements that Doyle had no criminal record  by saying, "as far as I know."  However, at other moments, the  prosecutor more definitively denied that Doyle had been convicted by  answering the court's questions with a simple "No, no" or saying, "I  know he hasn't [been convicted] from the records that I've seen."


54
Doyle's criminal record was in the Criminal Offender Record  Information System (CORI) of Massachusetts.  A person's CORI report  lists his or her court appearances and convictions, if any.11 The  Commonwealth has represented to the state courts and to us that at  trial the prosecutor had only the first page of Doyle's three-page CORI  report; the relevant conviction appears on the second page.12  The  Commonwealth contends that it did not violate the requirements of Brady for three reasons.  First, it says that the prosecutor disclosed all  the information he had about Doyle's criminal record because the  incomplete CORI print-out did not indicate that Doyle had ever been  convicted for child abuse.  Second, the Commonwealth contends that  McCambridge should have been more diligent in requesting that the  record be produced because the prosecutor qualified his representation  that Doyle had no criminal record by saying, "as far as I know." Finally, the Commonwealth argues that McCambridge was required to  object to the prosecutor's nondisclosure of Doyle's criminal record.


55
1. Evidence in the possession of the government


56
Under well-settled law, a prosecutor's duty to disclose  exculpatory evidence extends beyond his or her personal knowledge of  such evidence.  See Kyles v. Whitley,  514 U.S. 419, 437 (1995) (describing the prosecutor's duty "to learn of any favorable evidence  known to the others acting on the government's behalf in the case"). This duty exists because the prosecutor is the representative of the  government in proceeding against a defendant in a criminal case.  See Giglio v. United States, 405 U.S. 150, 154 (1972) ("The prosecutor's  office is . . . the spokesman for the Government.").  Therefore, a  state prosecutor may be held accountable, in appropriate circumstances,  for the nondisclosure of Brady material in the possession of a state  agency without regard to the prosecutor's personal knowledge of the  existence of that material.  See Strickler, 527 U.S. at 282 (discussing  nondisclosure of Brady material "known to the Commonwealth" but  apparently not to the prosecutor); United States v. Agurs, 427 U.S. 97,  111 (1976).


57
While the above cited cases involved evidence known to the  police, their logic applies to the instant case where Doyle's record  was in the CORI database.  The prosecutor requested Doyle's criminal  record from the Board, an agency established to coordinate the exchange  of information among law enforcement personnel, including prosecutors  and police officers.  Based on the information he received from the  Board, the prosecutor made inaccurate representations to the court and  to the defense that Doyle had no criminal record. Under these  circumstances, the Commonwealth is responsible for the nondisclosure  regardless of the prosecutor's actual personal knowledge.  See Kyles,  514 U.S. at 437-38 (holding that a prosecutor's ignorance of  exculpatory evidence not produced by a state agency does not insulate  the government from responsibility for a Brady violation). Accordingly, the prosecutor's statement that Doyle had no criminal  record "as far as I know" does not relieve the Commonwealth of its  obligations under Brady and its progeny because the prosecutor's  personal awareness of Doyle's conviction is irrelevant.


58
2. Defense obligation to request exculpatory evidence


59
The Commonwealth also argues that defense counsel should have  filed a formal discovery request for Doyle's criminal record.  There is  no legal support for this contention.  Brady obligations apply  independently of any request by the defense.  See Strickler, 527 U.S.  at 280 ("[T]he duty to disclose [exculpatory] evidence is applicable  even though there has been no request by the accused.") (citing Agurs,  427 U.S. at 107).  The prosecutor in this case was on notice from the  time of the first sidebar conference that evidence substantiating  McCambridge's claim that Doyle had a criminal record would be favorable  to McCambridge's theory of self-defense.  There was no need for  McCambridge to request that evidence specifically.


60
The Commonwealth also asserts that it was not obligated to  disclose evidence of Doyle's conviction because the defense could have  found that evidence through a reasonably diligent investigation.  See,  e.g., United States v. Rodriguez, 162 F.3d 135, 147 (1st Cir. 1998)  ("The government has no Brady burden when the necessary facts . . . are  readily available to a diligent defender.").  However, as we have said,  McCambridge could not access the CORI database without a court order. See Mass. Gen. Laws ch. 6, § 172.  Moreover, the Commonwealth's  argument about the ready availability of evidence misses the point in  an important way.  This was not a case where the defense simply refused  to look for evidence it knew existed and relied on the prosecution to  disclose that evidence.  Rather, the prosecutor misrepresented, to both  defense counsel and the court, that the exculpatory evidence did not  exist.  Defense counsel was entitled to rely on that representation. See Strickler, 527 U.S. at 283 n.23.  Under these circumstances,  McCambridge was not obligated to inquire further.


61
The Commonwealth argues that the prosecutor's statements that  Doyle had no criminal record "as far as I know" should have alerted  defense counsel to the possibility that such a record did exist but was  simply not personally known to the prosecutor.  Because the prosecutor  expressed this uncertainty, the Commonwealth asserts, McCambridge and  his lawyer should have been more diligent in confirming whether the  prosecutor's qualified statements were, in fact, true.  The  Commonwealth cites no authority for this argument, and we have found  none.  Under well-settled law, as we have explained, Brady obligations  apply to a prosecutor's conduct even when the defense has not requested  the discovery of exculpatory evidence.  See Strickler, 527 U.S. at 280; Agurs, 427 U.S. at 107.  Moreover, McCambridge's lawyer reasonably  relied upon the prosecutor's assertions that Doyle had never been  convicted, see Strickler, 527 U.S. at 283 n.23, and because the  prosecutor was acting in his capacity as representative for the  government, see Kyles, 514 U.S. at 437, defense counsel was also  reasonable in concluding that the prosecutor's denials indicated that  such evidence of a conviction did not exist at all.


62
3. Requirement to object to the nondisclosure of exculpatory  evidence


63
Finally, the Commonwealth argues that McCambridge was  required to object to the prosecutor's inaccurate representation about  Doyle's record.  We again invoke Strickler's holding that "defense  counsel may reasonably rely" on a prosecutor's representation that she  has complied fully with Brady, Strickler, 527 U.S. at 283 n.23, thus  rendering unnecessary an objection to the nondisclosure of that  evidence.


64
In Strickler, the prosecutor maintained an "open file"  policy, meaning that "his entire prosecution file was made available to  the defense."  Id. at 283 n.22.  While it is not clear from the record  whether the Commonwealth maintained an open file policy in this case,  the prosecutor's statements to defense counsel and to the court that  Doyle had no criminal record constitute essentially the same  representation at issue in Strickler: that the prosecution had  fulfilled its constitutional duty under Brady.  Under such  circumstances, defense counsel is not required to object.  The Supreme  Court rejected such a requirement in Strickler: "The presumption, well  established by tradition and experience, that prosecutors have fully  discharged their official duties, is inconsistent with the novel  suggestion that conscientious defense counsel have a procedural  obligation to assert constitutional error on the basis of mere  suspicion that some prosecutorial misstep may have occurred." Strickler, 527 U.S. at 286-87 (citation and internal quotation marks  omitted).


65
The Commonwealth argues, again, that the prosecutor's  occasional use of the words "as far as I know" excuses its failure to  disclose the exculpatory evidence because such equivocal language  should have indicated to the defense that a specific objection to the  nondisclosure was necessary.  We reject this argument for the same  reasons we rejected it in determining whether McCambridge was obligated  to pursue a more thorough investigation of Doyle's criminal record: the  Commonwealth cannot escape its Brady obligations by qualifying its  nondisclosure of exculpatory evidence and then shifting its disclosure  burden to defense counsel.  Moreover, the potential mischief invited by  the Commonwealth's argument provides strong reason for rejecting it.

B. The state court decision

66
McCambridge argued to the Massachusetts Appeals Court that  the prosecution did not fulfill its disclosure obligations under Brady. For example, he stated in his opening brief:


67
The suppression of material evidence  favorable to the accused and requested by him  violates the due process clause of the Fifth  Amendment.  Brady v. Maryland, 373 U.S. 83, 87  (1963).  In the case at bar, because the trial  court refused to require the Commonwealth to  produce Doyle's criminal record, the defendant  cannot prove that exculpatory evidence was  withheld.  The defendant did everything he could  to preserve this issue.  Compare this case with Commonwealth v. O'Brien, 419 Mass. 470, 477  (1995).  Thus, this Court should order the  Commonwealth to produce Doyle's criminal record  so that an appellate decision can be made.  In  the alternative, the case should be remanded to  the Superior Court for production of the document  at issue.


68
If Doyle had a criminal record as  described by the defendant at trial, then the  withholding of that information and the  misleading of the defense was intentional and  prejudicial.  See Commonwealth v. Tucceri, 412  Mass. 401 (1992).  A new trial would be required.


69
As this passage from McCambridge's brief reveals, he articulated a  claim under Brady, with appropriate citations, and argued that the  prosecutor's nondisclosure of Doyle's record - if the record indeed  existed - prejudiced him.


70
The prosecution finally disclosed Doyle's criminal record  after McCambridge filed his brief to the appeals court.  With the  benefit of this disclosure, McCambridge refined his Brady argument in  his reply brief:


71
In United States v. Bagley, 473 U.S. 667  (1985), the Supreme Court recognized that an  incomplete response to a specific request for  disclosure not only deprives the defense of the  specific evidence, but also suggests to the  defense that such evidence does not exist.  The  defense's reliance on such a misleading  representation can result in important changes in  trial strategy.  In the case at bar, the  defendant was specifically misinformed about  Doyle's criminal record.  The defendant then gave  up his strategy of attempting to elicit  information about that record from Doyle's  brother or the Clerk of the Norfolk Superior  Court.  The prosecutor fully exploited his  misrepresentation in closing argument.


72
The state constitutional and/or common law  standard for a Brady violation does consider the  issue of bad faith.  See, Commonwealth v. Tucceri, 412 Mass. 401 (1992).  Where bad faith  has been demonstrated, and the withheld evidence  might have affected the outcome of the trial, the  defendant is entitled to a new trial.  In the  absence of bad faith, a new trial is necessary if  the withheld evidence would have been a real  factor in the jury's deliberation.  In the case  at bar, the defendant's truthfulness about the  circumstances of his confrontation with Doyle was  the central issue in the case.  The blocking of  the Commonwealth's claim, that the so-called  argument about Doyle's child abuse record was  only the defendant's attempt to assassinate  Doyle's reputation, would have been a real factor  in the jury's deliberation, and probably would  have tipped the scales in favor of the defendant.


73
Again, McCambridge identified the proper legal authority for his Brady claim and explained why he was prejudiced by the prosecutor's failure  to fulfill his disclosure obligations.


74
McCambridge's Brady claim was thus fully presented to the  Massachusetts Appeals Court.  In its opinion affirming McCambridge's  conviction and sentence, the appeals court addressed the issue of  Doyle's record only briefly: "While the defendant pressed for the  introduction of the victim's criminal record at trial, he did not  object when the judge did not order its production or request that the  record be marked for identification.  He cannot now be heard to  complain that the judge failed to do so at the sentencing stage." McCambridge, 690 N.E.2d at 475.  The court did not seem to recognize  the Brady implications of Doyle's criminal record - despite  McCambridge's argument on the issue in both his opening and reply  briefs.


75
Under the new standard for federal habeas review, we must  examine the state court determination of McCambridge's Brady claim to  determine whether it is contrary to or an unreasonable application of  clearly established federal law.  See 28 U.S.C. § 2254(d)(1).  The  Supreme Court has said the following with respect to the "contrary to"  prong of § 2254(d)(1):


76
The text of § 2254(d)(1) therefore suggests that  the state court's decision must be substantially  different from the relevant precedent of this  Court. . . . A state-court decision will  certainly be contrary to our clearly established  precedent if the state court applies a rule that  contradicts the governing law set forth in our  cases. . . . A state-court decision will also be  contrary to this Court's clearly established  precedent if the state court confronts a set of  facts that are materially indistinguishable from  a decision of this Court and nevertheless arrives  at a result different from our precedent.


77
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).  The Massachusetts  Appeals Court did not explicitly identify a legal rule in finding that  McCambridge could not "now be heard to complain" about the  nonproduction of Doyle's record because he did not object when the  trial court judge failed to order its production.  McCambridge, 690  N.E.2d at 475.  However, we discern in this reasoning reliance on a  legal rule that would require a criminal defendant to object to the  prosecution's nondisclosure of exculpatory evidence where the  prosecution has represented that such evidence does not exist.  As we  have explained, Strickler held that defense counsel is not required to  object to the nondisclosure of exculpatory evidence where the  prosecutor has represented that she has discharged fully her Brady obligations.  Strickler, 527 U.S. at 289.  Accordingly, the opinion of  the Massachusetts Appeals Court denying McCambridge's Brady claim, in  part, because he failed to object at trial is contrary to clearly  established federal law as determined by the Supreme Court.13

C. Adequate and Independent State Ground

78
The Commonwealth asserts that our review of McCambridge's  habeas petition is precluded because there is an adequate and  independent state ground for the state appeals court decision.  Federal  courts "will not review a question of federal law decided by a state  court if the decision of that court rests on a state law ground that is  independent of the federal question and adequate to support the  judgment."  Coleman v. Thompson, 501 U.S. 722, 729 (1991). Noncompliance with a state procedural rule may preclude federal review:  "The [adequate and independent state ground] doctrine applies to bar  federal habeas when a state court declined to address a prisoner's  federal claims because the prisoner had failed to meet a state  procedural requirement.  In these cases, the state judgment rests on  independent and adequate state procedural grounds."  Id. at 729-30.  In  this case, the Commonwealth contends that the appeals court's reliance  on the Massachusetts rule requiring contemporaneous objections provides  such an adequate and independent state ground.


79
We have already addressed and rejected the Commonwealth's  argument that McCambridge had an obligation to object to the  government's failure to disclose Brady material.  As we have explained,  there is no such obligation under federal law.  Indeed, the  Commonwealth has not identified any authority supporting its assertion  that McCambridge was required to object.  Our own review of  Massachusetts case law has unearthed no case - except for the decision  of the appeals court in this case - requiring an objection to the  inaccurate representation by a prosecutor that exculpatory evidence  sought by the defense has been disclosed.  See, e.g., Commonwealth v. Hill, 739 N.E.2d 670 (Mass. 2000); Commonwealth v. Tucceri, 589 N.E.2d  1216, 1224 (Mass. 1992).  For a state procedural rule to constitute an  adequate and independent state ground barring federal habeas review,  that rule must be consistently enforced in the state courts.  See Moore v. Ponte, 186 F.3d 26, 32-33 (1st Cir. 1999).  Even if a Massachusetts  procedural rule requiring an objection to the nondisclosure of  exculpatory evidence had been consistently enforced, such a rule would  be unconstitutional under Strickler.  Accordingly, we hold that there  is no adequate and independent state ground supporting the decision of  the Massachusetts Appeals Court that precludes our review of  McCambridge's claim.

IV. Prejudice

80
Our conclusion that the ruling by the appeals court requiring  an objection to the prosecutor's nondisclosure is contrary to clearly  established federal law does not end the Brady inquiry.  Brady established both a rule of conduct - that prosecutors must disclose  exculpatory evidence in the possession and control of the government -  and a standard of prejudice that petitioners must satisfy to obtain  relief for a prosecutor's failure to comply with that rule.  See Strickler, 527 U.S. 281-82 (noting elements of a Brady claim). Accordingly, we must also assess whether the appeals court made an  erroneous determination of prejudice under Brady, and if so, whether  that erroneous determination is contrary to or an unreasonable  application of clearly established federal law.


81
To prevail on his Brady claim, McCambridge must show that he  was prejudiced by the prosecutor's failure to disclose the evidence of  Doyle's criminal record.  He must demonstrate "a reasonable probability  that, had the evidence been disclosed to the defense, the result of the  proceeding would have been different."  United States v. Bagley, 473  U.S. 667, 682 (1985).  "A 'reasonable probability' is a probability  sufficient to undermine confidence in the outcome."  Id.  "The question  is not whether the defendant would more likely than not have received  a different verdict with the evidence, but whether in its absence he  received a fair trial, understood as a trial resulting in a verdict  worthy of confidence."  Strickler, 527 U.S. at 289-90.  See also United  States v. Josleyn, 206 F.3d 144, 152 (1st Cir. 2000). That there was  sufficient evidence on which to convict McCambridge does not establish  that his trial was fair.  See Kyles, 514 U.S. at 435.


82
We think it improbable that, standing by itself,  McCambridge's inability to corroborate his testimony through the  introduction of Doyle's conviction would have had an effect on the  jury's verdict. However, as McCambridge has argued consistently, the  prosecutor's summation, exploiting his misleading disclosure about  Doyle's conviction, seriously prejudiced his case.


83
Immediately after the third sidebar, the defense rested and  the parties made their closing arguments,14 the pertinent parts of which  follow:

DEFENSE:

84
Now, I want to talk about one other thing  that's not evidence in this case.  Mr.  McCambridge told you on the stand the reason that  he and Mr. Doyle got into the fight, besides that  they were both drinking and probably neither one  thinking with great clarity, there had been an  incident a couple of months previously where Mr.  McCambridge says he had been told something about  Mr. Doyle and confronted him with it.


85
The Judge admitted that evidence as  evidence of Mr. McCambridge's state of mind; in  other words, it's not evidence that Mr. Doyle  ever did anything.  There is no evidence in this  case that Mr. Doyle ever molested or abused any  child. . . .  There is also no evidence in this  case that he did it.  There is simply no evidence  in this case one way or the other.  You don't  know as you sit here whether what transpired,  what Mr. McCambridge says transpired between the  two of them, has any backing in reality or not. There is no evidence.  There is no evidence that  he did it.  There is no evidence that he didn't  do it.  It was admitted for a different purpose,  which was the state of mind.


86
Now, you have to decide whether or not  something like that could cause that explosion in  the car, that eruption of bad blood when people  had been drinking.  Mr. McCambridge told you that  he made some comment to this person that enraged  him, and he had been threatened before.


87
***

PROSECUTION:

88
Does the defendant have something for you  to believe when he gets up there and says, oh,  yeah, I had an argument with Richard Doyle  because of child molestation?  There is  absolutely evidence of that.15  Was that put in  there to tell you what his frame of mind was? No.  That was his third shot at the victim from  the stand, assassinating his reputation with no  evidence.  That's what that was for, I suggest to  you, not to show state of mind.


89
In compliance with the ruling of the judge, the defense argued in its  summation that whether or not Doyle had been convicted of child abuse  was relevant only to establish McCambridge's state of mind.  In  contrast, the prosecutor ignored the court's ruling, as well as his  representation that he would abide by that ruling, and used the absence  of exculpatory evidence he failed to produce to impugn McCambridge's  credibility.  For reasons that are not clear from the record, defense  counsel did not object to the prosecutor's closing argument.  Normally,  this omission would require McCambridge to show cause for his failure  to object and prejudice from the prosecutor's closing argument. However, we conclude that the Commonwealth has not raised the issue of  McCambridge's procedural default and has thus waived that argument.

A. Waiver of Waiver

90
Massachusetts has a "routinely enforced, consistently applied  contemporaneous objection rule" regarding improper closing argument. Burks v. DuBois, 55 F.3d 712, 716 (1st Cir. 1995).  Without a timely  objection, Massachusetts courts will not review appellate claims of  improper summation unless cause and prejudice are demonstrated, except  to ensure that a miscarriage of justice has not occurred. See Commonwealth v. Stote, 739 N.E.2d 261, 268 (Mass. 2000).  When the  Massachusetts courts apply the procedural default rule, federal review  of an improper summation claim is similarly foreclosed because failure  to observe state procedural rules can provide an adequate and  independent state ground for the decision.  Palmariello v. Superintendent of M.C.I. Norfolk, 873 F.2d 491, 493 (1st Cir. 1989).


91
The Commonwealth did not argue in the federal district court  that McCambridge procedurally defaulted by not objecting to the  prosecutor's closing argument.16  Indeed, even after receiving three  extensions of time to file a brief in the federal district court, the  Commonwealth failed to file a timely brief.17  "[T]his circuit  religiously follows the rule that issues not presented to the district  court cannot be raised on appeal."  Ouimette v. Moran, 942 F.2d 1, 12  (1st Cir. 1991).  In similar circumstances, we have found that the  Commonwealth waived objections to arguments of a habeas petitioner  where the petitioner did not make those arguments at trial:


92
Neither in briefing nor in oral argument in this  court did the state argue that Fortini's failure  to raise the constitutional issue at the trial  stage precludes the argument in federal court. We conclude that the state has itself waived any  objection to the habeas petition based on  Fortini's failure to raise the constitutional  issue at trial.


93
Fortini v. Murphy, 257 F.3d 39, 45 (1st Cir. 2001).


94
Also, litigants in federal habeas proceedings arising from  state court convictions are generally required to raise all issues in  the state courts.  See Trest, 522 U.S. at 89; Coleman, 501 U.S. at 732  (noting that the independent and adequate state ground doctrine  "ensures that the States' interest in correcting their own mistakes is  respected").  The Commonwealth did not argue procedural default in any  state proceedings.  "[P]rocedural default is normally a defense that  the State is obligated to raise and preserve if it is not to lose the  right to assert the defense thereafter."  Trest, 522 U.S. at 89  (internal quotation marks omitted); see also Commonwealth v. LaBriola,  722 N.E.2d 13, 14 n.1 (Mass. 2000).  Where the state does not raise and  preserve an argument of procedural default, federal appellate courts  are not obligated to raise that procedural issue sua sponte.  See Trest, 522 U.S. at 89.  However, a federal court may, in its  discretion, raise procedural default sua sponte even where the  prosecution never presented that claim to any state court.18  See Ortiz v. DuBois, 19 F.3d 708, 715 (1st Cir. 1994).


95
This case presents a weak basis for sua sponte consideration  of McCambridge's procedural default. In contrast to other cases where  we noticed procedural default sua sponte, here the Commonwealth failed  to assert the argument in any state court.  See, e.g., Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997) (procedural default issue  raised belatedly in district court habeas proceedings nonetheless had  been fully briefed at both the state and federal levels). Additionally, the weakness of McCambridge's substantive claim is not  apparent on the face of the record.  In these circumstances, the  position taken by the Third Circuit in a comparable case is compelling:


96
[W]here the state has never raised the issue at  all, in any court, raising the issue sua sponte  puts us in the untenable position of ferreting  out possible defenses upon which the state has  never sought to rely. When we do so, we come  dangerously close to acting as advocates for the  state rather than as impartial magistrates.


97
Smith v. Horn, 120 F.3d 400, 409 (3d Cir. 1997) (citing United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring)).  We  therefore decline to consider, sua sponte, McCambridge's procedural  default.

B. State court decision

98
Next we examine the opinion of the Massachusetts Appeals  Court to determine whether its conclusion that McCambridge was not  prejudiced by the nondisclosure of the exculpatory evidence is contrary  to or an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1).  The appeals court did not identify any  legal rule in its brief treatment of the prejudice issue.  The court  simply stated: "By convicting the defendant of manslaughter, the jury  obviously credited the defendant's testimony that the struggle in the  van was precipitated by the defendant's remark about this offense to  Doyle."  McCambridge, 690 N.E.2d at 475.  To be sure, the state court's  opinion addresses the prejudice issue by considering whether the  prosecutor's nondisclosure affected the outcome of McCambridge's trial. This focus on the outcome of the proceeding is appropriate.  See Bagley, 473 U.S. at 682 (defining prejudice as "a reasonable  probability that, had the evidence been disclosed to the defense, the  result of the proceeding would have been different").  However, we  cannot determine from the appeals court's opinion whether it required  that  McCambridge demonstrate, to a reasonable probability, that there  was an effect on the outcome - the Brady standard for prejudice - or  used some other standard.  Because it is impossible for us to discern  the legal rule upon which the state court relied, we cannot analyze the  court's opinion to determine whether that legal rule is contrary to  clearly established federal law.  Accordingly, we consider whether the  appeals court decision on the prejudice issue is an unreasonable  application of clearly established federal law as determined by the  Supreme Court.

The Supreme Court has said:

99
[A] federal habeas court making the 'unreasonable  application' inquiry should ask whether the state  court's application of clearly established  federal law was objectively unreasonable.  The  federal habeas court should not transform the  inquiry into a subjective one by resting its  determination instead on the simple fact that at  least one of the Nation's jurists has applied the  relevant federal law in the same manner the state  court did in the habeas petitioner's case.


100
Williams, 529 U.S. at 409-10.  Attempting to give some meaning to  "unreasonable," the Court also noted that "the most important point is  that an unreasonable application of federal law is different from an incorrect application of federal law."  Id. at 410.  We conclude that  the state court's conclusion that "the jury obviously credited  [McCambridge's] testimony," because it convicted him of manslaughter,  is an unreasonable application of federal law.  To explain, we describe  the evidence presented at McCambridge's trial.

1. The evidence

101
The prosecution alleged at trial that McCambridge shot and  killed Doyle shortly after the two men left a bar in Cambridge at 1  a.m., and that McCambridge was driving, with Doyle's body in the back  of the van, when a state trooper tried to stop the van.  The  prosecution further alleged that the van crashed when McCambridge  reached for a gun, intending to shoot the police officer attempting to  apprehend him.  However, the evidence presented by the Commonwealth at  trial to prove this theory was conflicting and inconclusive.


102
a. Time of death


103
The doctor who performed the autopsy on Doyle testified that  Doyle had last consumed alcohol approximately one and one half hours  before his death.  It is undisputed that Doyle and McCambridge left the  bar when it closed at 1 a.m. and that the accident occurred at about 2  a.m.  Thus, if credited by the jury, the doctor's uncontradicted  opinion tended to diminish any  possibility that Doyle's death occurred  much before the crash occurred, let alone just after the two men left  the bar at 1 a.m.  Another prosecution witness, an EMT responding to  the accident, testified that Doyle's skin was still warm when his body  was found pinned beneath the van, thus tending to establish that Doyle  died not long before the accident, particularly in light of the  uncontradicted testimony that it was cold that night.


104
b. The weapons


105
The evidence was also inconclusive with respect to  McCambridge's ownership of and possession of a gun.  The prosecution  tried and failed to establish that McCambridge was carrying a gun in  the waistband of his pants before he was in the van.  The bartender  testified that McCambridge became angry when the bartender started to  close up the bar.  He said that McCambridge stood up and brushed up  against him, chest to chest, while pushing his coat back.  When asked  by the prosecutor whether he saw McCambridge "reach for anything," the  bartender said no.  The bartender also testified that McCambridge did  not seem to be angry with Doyle when the two men left the bar.


106
A firearms officer testified that McCambridge shot Doyle  twice with a derringer.  When emergency personnel were removing  McCambridge's jacket after the accident, the derringer fell to the  floor of the ambulance.  However, the firearms officer did not trace  the derringer to establish who owned it.  Nor did he attempt to  identify the owner of the 9 mm. pistol with which Doyle allegedly had  threatened McCambridge.  Another Massachusetts police officer  testified that a box of ammunition fitting one of the two guns and  labeled "Big Al's Gun Shop" was found in the van.  However, the box of  ammunition was never introduced into evidence and the police officer  had no other information about it.


107
c. Location of the bodies


108
To bolster its theory that McCambridge had killed Doyle up  to an hour before the accident, the prosecution attempted to establish  that McCambridge was driving when the van crashed.  Forensic witnesses  testified that blood on the seat of McCambridge's pants was consistent  with Doyle's blood, supporting an inference that McCambridge sat in the  driver's seat at some point.  However, there was also evidence that  there was not enough blood on his pants to suggest that he sat there  for long.


109
There was other conflicting evidence about the probable  location of McCambridge's body and Doyle's body at the time of the  accident.  A prosecution witness testified that: (1) the passenger side  window was broken; (2) glass from the passenger side window was found  on McCambridge's collar and under his jacket but none was found on  Doyle; and (3) if someone had been sitting in the passenger seat at the  time of impact, he would have been thrown to the right into the  windshield or the passenger door window.  The prosecution offered no  explanation as to how or why, under its theory of the case, McCambridge  might have been in the passenger seat at the time of the impact.


110
The defense tried to show that it was not clear where the two  bodies had been located prior to the crash and roll-over.  The defense  accident reconstructionist testified that the driver of the van could  have been thrown between the bucket seats and out of the side door when  the van was lifted into the air.  The evidence was undisputed that  after the accident the sliding door on the passenger side of the van  was off its bottom hinges.  The witnesses agreed that Doyle had been  thrown from the car through this doorway.  Because the fabric of his  sweater had actually fused to the van, one investigator testified that  Doyle's ejection must have been the result of a major impact that  generated the heat necessary to accomplish the fusion.  This evidence  indicated that Doyle could have been driving at the time of the crash,  and did not establish whether Doyle, if he had not been driving, was  placed in the back of the van by McCambridge prior to the accident or  was thrown there upon impact.


111
Police officers, emergency medical personnel and civilians  agreed that McCambridge was found wedged in the driver's seat area. Yet  blood and hair sample tests established, without contradiction, that  McCambridge's head hit the passenger side of the windshield during the  crash.  Uncontradicted testimony also established that McCambridge had  a gash in his head and was covered with blood when he was found.


112
d. The police investigation and handling of evidence


113
There were other questions left unanswered by the  investigators.  The accident reconstructionist for the state police had  no photographs of the tire marks on the road and could not explain the  absence of such important and apparently routine evidence.19  He also  admitted during cross-examination that he had made mistakes in drawing  the accident scene; he was not sure what one line was intended to  indicate and a second line purporting to represent the track of one  tire in fact traced the track of a different tire.  Like the forensic  chemist, he became confused regarding the physical principles for  determining the direction the bodies would have moved when the van hit  the barrier.


114
Another state investigator failed to document where things  were located before they were removed from the van by the police.  She was  unaware of any inventory that might have been made of the "heaps  of stuff" that had been in the van, which included trash bags,  clothing, newspapers and debris.  She also stated that the nine  millimeter gun, which was loaded and cocked and allegedly used to  threaten McCambridge, was found under a great deal of debris.  Although  the prosecution alleged that the van was weaving because McCambridge  was reaching for this same gun in order to shoot the trooper who was  trying to pull him over, there was no testimony as to whether the  debris would have been on top of the gun before the crash or whether  the gun itself would have moved during the crash.  Moreover, the  investigator could not say whether bloodstains of Doyle's blood type  found in the back of the van were recent or even whether they had been  made by the police as they removed items from the van.  Some of the  items that had fallen onto the road during the crash had been thrown  back into the van before it was towed away, thus possibly causing  contamination and making it harder yet to reconstruct the accident.


115
e. Self-Defense


116
In support of his self-defense claim, McCambridge testified  that Doyle became aggressive after McCambridge called him a name  referring to his conviction for child abuse.  He also stated that he  remembered nothing after the first shot he fired at Doyle until three  to four days later when he was in the hospital.  However, a defense  medical expert explained that a person might become more aggressive  after receiving the type of wound Doyle received when hit by the first  bullet.  Dismissing McCambridge's amnesia as "convenient," the  prosecutor called no medical experts to challenge the inference that  such a memory loss could be attributed to both shock and the serious  head wound McCambridge sustained in the accident.  Other than  McCambridge's own testimony, the record is devoid of evidence bearing  on whether McCambridge was in reasonable fear of serious bodily injury  or death when he shot Doyle.

2. The verdict

117
The jury began deliberating at approximately 1:30 p.m. and  returned its verdict the afternoon of the following day.20  At the end  of the first day's deliberations, the jury asked for clarification on  (1) unlawful killing, (2) malice aforethought, (3) burden of proof and  (4) reasonable doubt.  The following day, the jury requested  clarification of manslaughter. That afternoon, the jury returned a  verdict finding McCambridge guilty of the crime of manslaughter,  unlawful possession of a firearm, operating under the influence, and  operating to endanger.


118
In returning a verdict of manslaughter, the jury rejected the  prosecutor's theory that McCambridge acted with either  premeditation  or malice aforethought.  Its rejection of the murder charge left the  jury with only two options on the charge of unlawful killing:  manslaughter or acquittal.  The prosecutor's insinuation that  McCambridge fabricated his testimony to besmirch Doyle's reputation was  the last thing the jury heard from either lawyer.  This improper  undermining of McCambridge's credibility on the determinative question  of self-defense, and perhaps of his credibility in general, may well  have tipped the balance in favor of a manslaughter conviction.  Thus,  we conclude that there is a reasonable probability that the outcome of  McCambridge's trial would have been different if the existence of  Doyle's conviction had been disclosed and the prosecutor had not  suggested in closing argument that McCambridge was fabricating Doyle's  conviction.


119
Our conclusion is consistent with our decision in United  States v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993), where we considered  the prejudicial effect of a prosecutor's closing argument questioning  the existence of exculpatory evidence the defendant claimed existed but  which the prosecution failed to disclose.21  The defendant in that case,  charged with smuggling illegal drugs into the United States from Aruba,  presented a defense of duress.  She testified that a man named Michael  Mouma had threatened to harm her children if she did not transport  drugs for him.  Defense counsel tried to obtain evidence from the  prosecution to corroborate the defendant's testimony regarding Mouma  and the circumstances under which she agreed to smuggle the drugs. Although the government had information that Mouma did exist, was in  Aruba, and had been a drug trafficker, that exculpatory information was  never disclosed to the defense.  The prosecutor then used the absence  of information about Mouma to challenge Udechukwu's credibility in  closing argument.  In Udechukwu, as here, the defendant asserted on  direct appeal22 that the prosecution's Brady violation was magnified by  the improper summation.  We stated:


120
The inferences and the direct challenge to the  existence of a source named Michael, however,  when the prosecution had unearthed evidence that  he existed and was a prominent dealer in  narcotics, is indefensible.  Here we find a kind  of double-acting prosecutorial error: a failure  to communicate salient information, which, under  [Brady and Giglio] should be disclosed to the  defense, and a deliberate insinuation that the  truth is to the contrary.


121
Id. at 1106.


122
As in the instant case, there was no question in Udechukwu that the defendant committed the acts alleged by the prosecution. Udechukwu's defense of duress, like McCambridge's claim of self-defense, depended entirely on her credibility.  In Udechukwu, the  evidence not disclosed by the prosecution only partly substantiated her  defense because the fact that Mouma existed, lived in Aruba, and had  been involved in illegal narcotics did not establish that Mouma ever  threatened Udechukwu or asked her to smuggle drugs.  Nevertheless, we  reversed Udechukwu's conviction and remanded for a new trial because we  concluded that she was prejudiced by the prosecutor's improper attack  on the crucial issue of her credibility: "Whether the government's  failure to disclose this credibility-strengthening information could be  said to be reversible error, we need not decide.  We have no doubt,  however, that the prosecutor's persistent theme in closing argument  suggesting the nonexistence of this information . . . did fatally taint  the trial." Id. at 1105.23  Thus, we conclude that the prosecutor's  insinuation during closing argument that McCambridge had lied about  Doyle's criminal record likewise tainted the McCambridge trial.


123
Nevertheless, our conclusion that McCambridge was prejudiced  by the prosecution's failure to disclose Doyle's conviction is not  sufficient to warrant the issuance of a writ of habeas corpus.  We must  also conclude that the determination of the appeals court on this issue  was an unreasonable application of clearly established federal law as  articulated by the Supreme Court.  See 28 U.S.C. § 2254(d)(1).  The  appeals court found no prejudice because it concluded that the jury  must have believed McCambridge's account of the struggle and its cause  given his conviction for manslaughter: "By convicting the defendant of  manslaughter, the jury obviously credited the defendant's testimony  that the struggle in the van was precipitated by the defendant's remark  about [the conviction] to Doyle."  McCambridge, 690 N.E.2d at 475.


124
As we have noted, the court made this decision without  additional analysis or citation to any federal authority on Brady claims.  It did not even identify the legal rule upon which it relied  in deciding that McCambridge was not prejudiced by the nondisclosure of  Doyle's record.  Moreover, the court's conclusion that the jury  "obviously credited" McCambridge's testimony is not reflected in the  verdict.  The jury's conviction of McCambridge on two of the three  motor vehicle offenses indicates unmistakably that they concluded that  he was driving the van at some point, a determination that required  rejecting substantial parts of his account of the altercation with  Doyle, the shooting, and the accident.


125
In sum, the conclusion of the Massachusetts Appeals Court is  unduly speculative.24 The jury may well have reached a manslaughter  verdict for any number of reasons having nothing to do with its  crediting of McCambridge's insistence that the struggle was  precipitated by his remark about Doyle's conviction.  The only point we  can make with certainty about the jury's evaluation of McCambridge's  claim of self-defense is that the jury did not credit his testimony  sufficiently to acquit him.  Rather, their verdict reflected a negative  judgment as to McCambridge's credibility, in a case where the  Commonwealth's evidence was circumstantial and, on important points,  inconclusive.  Therefore, the state appeals court's erroneous conclusion that the outcome of McCambridge's trial would not have been  different had the evidence of Doyle's conviction been disclosed also  constitutes an unreasonable application of clearly established federal  law regarding prejudice in the Brady context.

V. Conclusion

126
Just before closing argument in this case, defense counsel voiced concern to the trial judge and the prosecutor that the  prosecutor would emphasize the absence of evidence of Doyle's  conviction during his summation.  The prosecutor represented that he  would abide by the judge's ruling that the existence of the conviction  was not at issue.  Regrettably, the prosecutor fully confirmed defense  counsel's fear.  He failed to perform the difficult, but vital, duty  our system imposes on prosecutors -- to attempt to win convictions  without undermining the fairness of the trial process. Such  prosecutorial lapses are, and we trust will remain, the exception in  this circuit.  Here, the prosecutorial lapse resulted in a Brady violation unrecognized by a state court decision plainly incompatible  with the standards of § 2254(d)(1).


127
Accordingly, the judgment of the district court is vacated,  and the cause remanded with directions to issue the writ of habeas  corpus unless, within 90 days from the date of this judgment, the  Commonwealth has vacated the judgment of conviction and, if it so  chooses, instituted proceedings to retry petitioner.


128
So ordered.



Notes:


1
  Section 2254(d)(1) provides:
An application for a writ of habeas corpus on behalf  of a person in custody pursuant to the judgment of a  State court shall not be granted with respect to any  claim that was adjudicated on the merits in State  court proceedings unless the adjudication of the claim  (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.


2
  Specifically, the jury convicted McCambridge of operating a  motor vehicle under the influence of alcohol and operating a motor  vehicle to endanger, but acquitted him of operating a motor vehicle  after the revocation of his driver's license.


3
  The vehicular offense convictions were also affirmed; the  conviction for illegal possession of a firearm was overturned due to an  error in the instructions to the jury.


4
  The United States District Court for the District of Massachusetts denied McCambridge's petition for a writ of habeas  corpus in March, 2000 and subsequently denied his request for a  certificate of appealability (COA).  We granted a COA limited to  the claim that the prosecution had failed to comply with the  disclosure obligations imposed by Brady. We agreed with the  district court's determination that McCambridge had not made the  showing necessary to support the issuance of a COA as to the  other two grounds specified in his petition.  These claims  challenged the admission into evidence of McCambridge's  clothing, which the police removed from his hospital room  without a warrant, and the court's failure to instruct the jury  on the defense of necessity in connection with the charge of  illegal possession of a weapon.


5
  During McCambridge's sentencing hearing, defense counsel again  requested that the prosecutor disclose evidence of Doyle's criminal  record and asked that his record be marked for the record.  The  prosecutor objected to this request and the trial court sustained the  objection.


6
  The Commonwealth does not dispute that the evidence of Doyle's  conviction was favorable to McCambridge.


7
  Doyle's official record indicates that he was convicted of  child neglect and was sentenced to two years, six months to be  served and the remainder suspended, with the six month period of  incarceration to be followed by a two year period of probation. McCambridge referred at trial to a conviction for child abuse. The Commonwealth does not argue that the abuse/neglect  distinction has any bearing on its disclosure obligation.


8
  This jury instruction was never given.


9
  The Commonwealth's summary of the second sidebar in its brief on  appeal omits both questions posed by the Court: (1) "Do we have a  conviction on this charge?" and (2) "Has anyone checked his probation  record?" It also omits the prosecutor's response: "It just says -- it  doesn't say what for. I have no idea what it's for."  The Commonwealth  thus misrepresents the colloquy as a simple exchange in which defense  counsel stated that he knew there was a conviction and the judge ruled  that she would admit the defendant's testimony about the decedent's  conviction and instruct the jury that it was not being offered for the  truth of the matter.


10
  The prosecutor's questions, posed in disregard of the court's  ruling, closely followed a defense motion for a mistrial because the  prosecutor defied an earlier ruling that he could not question  McCambridge about a piece of evidence because the prosecutor had not  laid a proper foundation for it. While this occurrence has no direct  bearing on the Brady issue, it is another troubling example of the  prosecution's failure in this case to abide by a ruling of the court.


11
   CORI reports are kept by the Criminal History Systems Board  of Massachusetts. The Board is responsible for collecting and  organizing criminal offender record information.  See Mass. Gen. Laws  ch. 6, §a168 (2000). The Board is comprised of several law enforcement  officials and associations.  Private users of the system, victims of  crime, and experts in personal privacy issues are also represented. The Board serves as a centralized repository for criminal record  information and may disseminate information only to criminal justice  agencies, agencies required to have access by statute, and other  agencies or individuals "where it has been determined [by the Board]  that the public interest in disseminating such information to these  parties clearly outweighs the interests in security and privacy." Id. at § 172.


12
  The Commonwealth has not contended (nor did the trial court  suggest) that the defense had access to Doyle's CORI report in the  absence of a court order or cooperation by the prosecution.  Massachusetts law permits dissemination of these records only to  agencies and individuals that the Board has certified.  See Mass. Gen.  Laws ch. 6, § 172.


13
  We held recently that the deferential standard of § 2254(d)(1)  does not apply in cases where the state court decision at issue did not  decide the petitioner's constitutional claim on the merits.  See Fortini v. Murphy, 257 F.3d 39, 47 (1st Cir. 2001) ("AEDPA imposes a  requirement of deference to state court decisions, but we can hardly  defer to the state court on an issue that the state court did not  address.").  Because we found that there was no state court  determination to which to defer in Fortini, we reviewed the  petitioner's claim de novo.  Id.  Although there might be an argument  that such a de novo standard of review applies here, we do not have to  resolve that issue because of our conclusion that the decision of the  Massachusetts Appeals Court cannot withstand review pursuant to the  more deferential standard applied to state court determinations on the  merits.


14
  Massachusetts Rule of Criminal Procedure 24(a)(1) provides that  "the defendant shall present his closing argument first."


15
  We have reproduced the prosecutor's argument as it appears in  the transcript of the trial as set forth in the record.  Given the  thrust of the prosecutor's argument, we must assume that either the  court reporter or the prosecutor unintentionally omitted the word "no"  before the word "evidence" in this sentence.


16
  In its brief in this Court, the Commonwealth, for the first  time, did note in passing that there was no objection to its summation,  but it did not mention the possibility of a procedural bar to federal  habeas review. The summation issue was disposed of in one paragraph.  "There is also no merit to the petitioner's contention that he was  prejudiced by the prosecutor's reference during closing argument to the  fact that the victim's criminal record was not in evidence.  Defense  counsel, during his closing, had already expressly conceded this point  by stating: 'There's no evidence in this case that Mr. Doyle ever  molested or abused any child.' In any event, the petitioner did not  object to the prosecutor's closing and the judge instructed the jury  that counsel's arguments were not evidence."  This statement is  patently inadequate to raise an adequate and independent state ground  argument with respect to the failure of the defendant to object to  closing argument. See United States v. Fernandez, 145 F.3d 59, 63 (1st  Cir. 1998) (issues mentioned in perfunctory manner, unaccompanied by  argument, are deemed waived); Fed. R. App. P. 28(b).


17
  Despite not receiving permission to file a brief after the  expiration of the final deadline, the Commonwealth did so. We assume it  was not considered by the district court.


18
  We are in agreement with other circuit courts on this issue. See, e.g., Washington v. James, 996 F.2d 1442, 1448 (2d Cir. 1993); Smith v. Horn, 120 F.3d 400, 409 (3d Cir. 1997); Yeatts v. Angelone,  166 F.3d 255, 261 (4th Cir. 1999); Smith v. Johnson, 216 F.3d 521, 523-24 (5th Cir. 2000); Hernandez v. Cowan, 200 F.3d 995, 997 (7th Cir.  2000) (referring to "well-established doctrine" of "waiver of waiver"); Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998); Hardiman v. Reynolds, 971 F.2d 500, 503 (10th Cir. 1992).


19
  The defense expert testified that it was difficult to analyze  the accident without a picture of the road marks and that it was  standard procedure to carefully record such marks.


20
  We are unable to tell from the record before us at what time the  jury was dismissed for the evening on the first day, at what time it  reconvened on the second day, or at what time it rendered its verdict  on the afternoon of the second day.


21
  Even though McCambridge suggests in his brief that Udechukwu is  controlling, the Commonwealth neither distinguished nor cited it in its  answering brief.


22
  We considered Udechukwu's Brady claim on direct appeal, not  collateral review.  For purposes of evaluating McCambridge's Brady claim, Udechukwu applies; the only difference in our standard of review  for the two cases is that we must take the additional step here of  determining that the appeals court decision affirming McCambridge's  conviction is contrary to or an unreasonable application of clearly  established federal law.


23
  Massachusetts law is consistent with our own.  In Commonwealth v. Collins, 434 N.E.2d 964, 969 (Mass. 1982), the SJC stated: "When the  failure to disclose is coupled with the blatant misrepresentation made  by the prosecutor in his closing argument to the jury, the conclusion  that the conviction cannot stand is inescapable."


24
  The district court agreed with the Massachusetts Appeals Court  that McCambridge had not been prejudiced by the prosecutor's  nondisclosure.  It concluded that the jury must have found enough  plausibility in McCambridge's account to reject a first or second  degree murder conviction: "[T]he jury must have accepted that  [McCambridge's] provocation story at least raised some reasonable doubt  in order to convict on manslaughter rather than first- or second-degree  murder."  This conclusion is unduly restrictive in its view that  McCambridge received his due because he avoided a murder conviction. McCambridge was also entitled to fair consideration of his claim that  he was not guilty of manslaughter.


