               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


STEPHEN D. COMSTOCK,                    No. 14-15311
             Petitioner-Appellant,
                                          D.C. No.
                v.                     3:10-cv-00147-
                                         LRH-WGC
STEFANIE HUMPHRIES; NEVADA
ATTORNEY GENERAL,
           Respondents-Appellees.         OPINION


     Appeal from the United States District Court
              for the District of Nevada
      Larry R. Hicks, District Judge, Presiding

                Argued and Submitted
      March 11, 2015—San Francisco, California

                 Filed May 12, 2015

       Before: Marsha S. Berzon, Jay S. Bybee,
         and John B. Owens, Circuit Judges.

              Opinion by Judge Owens
2                   COMSTOCK V. HUMPHRIES

                           SUMMARY*


                          Habeas Corpus

   The panel reversed the district court’s judgment denying
Stephen Comstock’s habeas corpus petition challenging his
Nevada conviction for possessing stolen property—a ring
commemorating Randy Street’s 1991-1992 national college
wrestling championship.

    The panel held that Comstock is entitled to relief under
Brady v. Maryland based on the prosecution’s failure to
disclose that, prior to trial, Street told the prosecutor and the
investigating detective that the ring might have been lost
outside, not stolen from his apartment, just as Comstock’s
lawyer had argued to the jury.

     The panel held that Street’s recollections were favorable
to Comstock in that they impeached the credibility of Street’s
trial testimony as to how he handled his ring, and more
importantly, affirmatively cast serious doubt on whether there
was a crime in the first place. The panel also held that the
recollections were suppressed. The panel concluded that the
suppression was prejudicial because had the information been
disclosed, there is at least a reasonable probability that the
outcome of the trial would have been different. The panel
held the state court’s contrary conclusion was an
unreasonable application of Brady and its progeny.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 COMSTOCK V. HUMPHRIES                       3

    The panel instructed that on remand the writ of habeas
corpus be granted, setting aside Comstock’s conviction and
sentence, and that Comstock be released from probationary
custody unless the State notifies the district court within 30
days that it intends to retry him, and commences retrial within
90 days.


                         COUNSEL

Ryan Norwood (argued), Assistant Federal Public Defender;
Rene Valladares, Federal Public Defender, Las Vegas,
Nevada, for Petitioner-Appellant.

Victor-Hugo Schulze, II (argued), Senior Deputy Attorney
General; Catherine Cortez Masto, Attorney General, Office
of the Attorney General of Nevada, Las Vegas, Nevada, for
Respondents-Appellees.


                         OPINION

OWENS, Circuit Judge:

    In March 2004, a Nevada jury found Stephen Comstock
guilty of possessing stolen property—a ring commemorating
Randy Street’s 1991–1992 national college wrestling
championship. The State’s theory at trial was that Comstock
or Danny Carter, a known burglar, stole the ring from Street’s
apartment, and then Comstock pawned it. Comstock’s trial
counsel argued that the ring was not stolen, but found outside
Street’s apartment, where Street likely had lost it. The jury
rejected that defense.
4                    COMSTOCK V. HUMPHRIES

     This seemingly trivial case had tragic results: Comstock
received a 10–25 year sentence under Nevada’s habitual
offender statute1 even though the “victim” of this crime,
Randy Street, had serious doubts about whether his ring was
actually stolen. In a pre-sentencing statement, Street wrote
that, prior to trial, he told the prosecutor and the investigating
detective that he remembered a time he had taken the ring off
outside his apartment, placing it either on the ground or on an
air conditioner, and did not recall putting it back on, meaning
that the ring might have been lost outside, not stolen, just as
Comstock’s lawyer had argued to the jury. Yet neither the
prosecutor nor the detective told Comstock’s lawyer this
crucial fact.

    We recognize the immense challenge a habeas petitioner
faces when making claims under Brady v. Maryland,
373 U.S. 83 (1963), and that our court routinely rejects such
arguments. But this is no routine case. The troubling and
unique circumstances here compel us to grant Comstock the
relief that he seeks, albeit ten years too late.

                              I. FACTS

A. The Investigation

    Detective Reed Thomas of the Reno Police Department
routinely reviewed transactions at local pawn shops for

    1
   Although Comstock is currently on parole, he “was incarcerated . . . at
the time the petition was filed, which is all the ‘in custody’ provision of
28 U.S.C. § 2254 requires.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). In
any case, persons on parole are also “in custody” for purposes of § 2254.
Jones v. Cunningham, 371 U.S. 236, 243 (1963). Comstock’s parole
status also suffices as a concrete injury under Article III, and so, his
petition is not moot. Spencer, 523 U.S. at 7.
                    COMSTOCK V. HUMPHRIES                              5

“unusual property.” In August 2003, something caught his
eye: a collegiate championship wrestling ring with some
engravings—’91–’92, National Champion, Northern Montana
College, 150, and Street. Detective Thomas tracked down the
ring’s owner, Reno resident Randy Street.2 Street thought the
ring was inside its usual place—a seashell in his apartment.
Thomas informed him that, in fact, the ring had been sold to
a local pawn shop.

    The pawn ticket bore the name of Stephen Comstock,
whom Thomas was monitoring under a repeat offender
program. Surveillance video confirmed that Comstock had
pawned the ring. Comstock lived near Street and did
maintenance work at Street’s apartment complex, which had
suffered a series of recent burglaries.

    Thomas and his colleagues questioned Comstock at the
police station. Comstock initially said that he could not
remember if he had in fact pawned Street’s ring, or merely
had planned to do so. When pressed, however, Comstock
admitted that he had pawned the ring, and he claimed that he
had done so for his friend Danny Carter, in exchange for a
carton of cigarettes. Comstock said that Carter lacked


 2
    Street was an outstanding wrestler, winning the Montana high school
state championship three times. He received a collegiate wrestling
scholarship to attend the University of Nebraska and later transferred to
Montana State University Northern, where in 1991–1992, he went 23–0
and led his team to the NAIA national championship. Known for his
“huge heart,” he passed away in 2012 at the age of 42. See Randy Street,
42, Mont. Standard (July 9, 2012, 12:00 AM), http://mtstandard.com/
news/local/obituaries/randy-street/article_e77b863e-c971-11e1-92d9-0
019bb2963f4.html; MSU-Northern NAIA National Champions, Mont. St.
Univ. N. Athletics, http://www.msun.edu/athletics/wrestle/natlchamps.htm
(last visited Mar. 26, 2015).
6                COMSTOCK V. HUMPHRIES

identification, so he could not pawn the ring himself.
Although Comstock initially stated that he suspected the ring
was stolen, as Carter was a known burglar, he then
backtracked and said that Carter claimed the ring belonged to
Carter’s father. The initials “D.C.” were scratched lightly
inside the ring.

B. The Trial

     An indictment charged Comstock with knowingly
possessing stolen property in violation of section 205.275 of
the Nevada Revised Statutes. The indictment charged that the
property was “obtained by means of larceny.” At Comstock’s
trial, in March 2004, the State argued that the ring was
“clearly stolen from [Street’s] apartment,” either by
Comstock or the serial burglar Carter, and that Comstock
knew or should have known that the ring was stolen when he
pawned it.

    Street testified for the prosecution about his cherished
ring. He said that he had never loaned the ring to anyone, it
never fell off accidentally, and he only wore it once or twice
each month. Although he had misplaced it inside his
apartment, he did not recall ever losing it outside. When
Detective Thomas called and asked about the ring, Street did
not know it was missing. He thought it was in its usual
place—inside a seashell in his living room—and he
remembered seeing it there about two weeks before the call.
He also testified that Comstock, as the maintenance worker,
had been in the apartment previously.

    Comstock called Sharon Taylor, his ex-girlfriend and the
housekeeper at Street’s apartment complex, as a witness. She
testified that she found the ring in the flower bed outside the
                 COMSTOCK V. HUMPHRIES                        7

complex’s laundry room, and brought it into her apartment.
According to Taylor, Carter visited her apartment while the
ring was inside, and she let him take it. Taylor acknowledged
that she had dated Comstock and that they broke up several
months before she found the ring.

    Comstock also called his co-worker Perry Harring to
testify. Harring said that Comstock had asked him for a ride
so that he could pawn a ring for Carter. Harring accompanied
Comstock to the pawn shop, and also drove Comstock to
deliver the proceeds to Carter.

     Finally, Comstock tried to call Carter to the stand, but
Carter’s attorney was unavailable, and Carter wished to
consult with him before testifying. Thereafter, Comstock
decided not to call Carter, and instead, the State called him as
its rebuttal witness. He testified briefly, stating that he had
never seen the ring.

C. Closing Arguments

     The parties agreed that Comstock had pawned the ring but
disagreed as to whether the ring had been stolen. Relying
heavily on the fact that Street cherished and safeguarded the
ring, the prosecutor argued that Street never would have lost
it: “That ring was important to him and he knew exactly
where it was. . . . He didn’t lose it, it was stolen.” After
defense counsel argued that perhaps the ring was simply lost
outside (as Taylor testified), the prosecutor returned to
Street’s testimony: “He keeps it in a seashell or he wears it.
He would never lose anything with that significant of
value. . . . It was clearly stolen from his apartment.” The jury
returned a verdict of guilty.
8                COMSTOCK V. HUMPHRIES

D. Sentencing

    As part of the sentencing process, Street (the alleged
victim) submitted a hand-written victim impact statement.
Rather than explain how the crime impacted him, he instead
expressed grave concern about whether there had been any
crime at all. Street wrote:

       I am not convinced that my ring was stolen.
       To have a clear conscience in this matter, I
       have to bring up the possibility that I may
       have placed my ring on the ground while
       outside my apartment washing my
       motorcycle. The ring is large & []I can
       remember a time prior to the ring turning up
       missing that I took it off for fear of scratching
       the paint or chrome. I placed it either on the
       ground or on the air conditioner outside & I
       don’t remember putting it back on. The
       defense attorney kept asking if I may have
       dropped it out of [my] pants pocket while I
       did laundry. I volunteered this info to
       Detective Reed [Thomas] and Prosecutor
       Erickson but it never came up @ trial. I never
       realized my ring was even missing until
       Detective Reed [Thomas] called & said he
       found it in [the] pawn shop. I’d hate to see
       this gentleman sentenced for possession of
       stolen property if it was out of my ignorance
       of misplacing it. Please take this into
       consideration. He’s probably served enough
       time for not asking nearby tenants if they were
       missing the ring. I don’t believe my apt. was
       broken into if all they stole was a ring.
                  COMSTOCK V. HUMPHRIES                        9

Street concluded his statement with a note, marked with a
large asterisk for emphasis: “Please make sure that the judge
reads this!”

E. New Trial Motion

    Comstock moved for a new trial. He argued that Street’s
statement constituted newly discovered evidence and that it
revealed that the State had failed to disclose favorable
evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963). In its opposition brief (but without a supporting
declaration or other corroborating exhibit), the State asserted
that, prior to trial, when Street was “pressed by the State as to
whether it was possible he lost the ring,” he paused and then
responded that “anything is possible,” and it was “possible he
could have taken off the ring while working on his
motorcycle, but in all reality, that would not have happened
since the ring was so important to him and, further, that it did
not happen.” Without holding an evidentiary hearing to
determine what Street actually said, the trial court denied
Comstock’s new trial motion in a one-sentence order. The
Nevada Supreme Court affirmed, concluding that there was
no new evidence warranting a new trial and there had been no
Brady violation. Because the Nevada Supreme Court rejected
Comstock’s Brady claim on the merits, it is exhausted for
habeas purposes. See 28 U.S.C. § 2254(b)(1)(A); Chambers
v. McDaniel, 549 F.3d 1191, 1195 (9th Cir. 2008).

    The district court denied Comstock’s habeas petition but
granted a certificate of appealability on Comstock’s Brady
claim. We have jurisdiction to review that claim under
28 U.S.C. § 2253.
10                COMSTOCK V. HUMPHRIES

              II. STANDARD OF REVIEW

    We review de novo a district court’s decision to deny a
habeas petition. Clabourne v. Ryan, 745 F.3d 362, 370 (9th
Cir. 2014). Under the Antiterrorism and Effective Death
Penalty Act of 1996, we may grant habeas relief only if the
state court adjudication was contrary to, or an unreasonable
application of, clearly established federal law, as determined
by the United States Supreme Court, or resulted in a decision
that was based on an unreasonable determination of the facts.
28 U.S.C. § 2254(d). When applying this standard, we
review the last reasoned state court decision. Clabourne,
745 F.3d at 371.

                     III. DISCUSSION

A. Legal Framework

    In Brady v. Maryland, 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 to punishment, irrespective of the
good faith or bad faith of the prosecution.” 373 U.S. 83, 87
(1963). There is no dispute that Brady constitutes clearly
established federal law for purposes of AEDPA. See, e.g.,
Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014); Aguilar
v. Woodford, 725 F.3d 970 (9th Cir. 2013), cert. denied,
134 S. Ct. 1869 (2014). The dispute is whether the Nevada
Supreme Court applied a standard contrary to that of Brady
or unreasonably applied Brady. Williams v. Taylor, 529 U.S.
362, 405–06 (2000).

   Comstock carries the burden of proof. Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011). He must show
                  COMSTOCK V. HUMPHRIES                        11

either that “the state court applie[d] a rule that contradicts the
governing law set forth in [Brady],” Williams, 529 U.S. at
405, or that the state court’s application of Brady was
“‘objectively unreasonable,’” White v. Woodall, 134 S. Ct.
1697, 1702 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63,
75 (2003)). Objective unreasonableness is a very demanding
standard; “even ‘clear error’ will not suffice.” Id. (quoting
Lockyer, 538 U.S. at 75). Comstock must show that the state
court’s decision was “so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id.
(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011))
(internal quotation mark omitted). In determining whether
Comstock has carried his burden, we focus on Supreme Court
case law and may look to our own precedent only as
persuasive authority in determining whether the state court
unreasonably applied Supreme Court law. Howard v. Clark,
608 F.3d 563, 568 (9th Cir. 2010).

B. Application of Legal Framework

    A Brady violation has three components: (1) the evidence
at issue must be favorable to the accused, (2) the evidence
must have been suppressed by the State, and (3) the
suppression must have been prejudicial. Strickler v. Greene,
527 U.S. 263, 281–82 (1999). The evidence at issue here is
the information that Randy Street, the owner of the allegedly
stolen ring, claims to have shared with the State before trial.
According to Street’s pre-sentencing victim impact statement,
he told the prosecutor and the detective that he “may have
placed [his] ring on the ground while outside [his] apartment
washing [his] motorcycle,” and that he recalled a specific
instance when he took off his ring “for fear of scratching the
paint or chrome,” “placed it either on the ground or on the air
12                   COMSTOCK V. HUMPHRIES

conditioner outside,” and did not “remember putting it back
on.”3 We conclude that Street’s recollections detailed in his
statement were favorable to Comstock and suppressed to his
prejudice.

      1. The Evidence Was Favorable

     Evidence is “favorable to the accused” for Brady purposes
if it is either exculpatory or impeaching. Strickler, 527 U.S.
at 281–82. If information would be “advantageous” to the
defendant, Banks v. Dretke, 540 U.S. 668, 691 (2004), or
“would tend to call the government’s case into doubt,” Milke
v. Ryan, 711 F.3d 998, 1012 (9th Cir. 2013), it is favorable.

    The Nevada Supreme Court did not make a clear
determination as to whether Street’s recollections were
favorable to Comstock. The court concluded that the


  3
    The State argues that the portion of Street’s statement regarding his
specific recollection of placing his ring down outside pertained to a prior
incident, and that Street subsequently retrieved the ring and had it in his
possession before Comstock allegedly stole it. The much more natural
reading of Street’s statement is that he specifically remembered removing
the ring and did not recall having it again before it was recovered at the
pawn shop. Otherwise, why would he remark that he did not “remember
putting it back on”? Moreover, even if the jury “could have” indulged the
State’s strained interpretation of Street’s statement, Smith v. Cain, 132 S.
Ct. 627, 630 (2012), that would not alter our conclusion that the evidence
was suppressed in violation of Brady. The nondisclosure of a statement
the jury could have—here, likely would have—interpreted as a concrete
recollection of the specific incident in which the ring could have been lost
undermines confidence in the jury’s verdict. See id. Finally, even if we
assume the jury would have adopted the State’s interpretation, Street’s
statement would still be Brady evidence, as we discuss infra, because it
supported the theory that the ring could have been lost, which would have
been materially useful for the defense.
                  COMSTOCK V. HUMPHRIES                        13

information in the statement was “mere speculation” that did
“not contradict [Street’s] trial testimony or rise to the level of
a recantation” and had only “minimal” impeachment value.
In so holding, the court may have intended to suggest that
Street’s recollections were not favorable. However, whether
evidence is favorable is a question of substance, not degree,
and evidence that has any affirmative, evidentiary support for
the defendant’s case or any impeachment value is, by
definition, favorable. See Strickler, 527 U.S. at 281–82.
Although the weight of the evidence bears on whether its
suppression was prejudicial, evidence is favorable to a
defendant even if its value is only minimal. See id.; Milke,
711 F.3d at 1012. Accordingly, Street’s recollections were
favorable to Comstock—they impeached Street’s credibility
in terms of how he handled his ring, and more importantly,
affirmatively cast serious doubt on whether there was a crime
in the first place. Any suggestion otherwise in the state
court’s decision was contrary to Brady. 28 U.S.C.
§ 2254(d)(1); see also Williams, 529 U.S. at 405–06;
Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012) (“In
the context of a Brady claim, . . . a state court’s use of the
wrong standard . . . will result in a decision that is ‘contrary
to’ clearly established federal law.”).

    2. The Evidence Was Suppressed

     Evidence is “suppressed” where it is known to the State
and not disclosed to the defendant. Strickler, 527 U.S. at 282.
The State’s duty to disclose is affirmative; it applies “even
though there has been no request by the accused.” Id. at 280
(citing United States v. Agurs, 427 U.S. 97, 107 (1976)). To
satisfy its duty, the State must disclose evidence known to the
prosecutor as well as evidence “‘known only to police
investigators and not to the prosecutor.’” Id. at 280–81
14               COMSTOCK V. HUMPHRIES

(citing Kyles v. Whitley, 514 U.S. 419, 438 (1995)). Thus, the
prosecutor has an obligation “to learn of any favorable
evidence known to the others acting on the government’s
behalf in [the] case, including the police.” Id. at 281 (citing
Kyles, 514 U.S. at 437). Once the prosecutor acquires
favorable information, even if she “inadvertently” fails to
communicate it to the defendant, evidence has been
suppressed. Id. at 282.

    The Nevada Supreme Court did not determine if the
information in Street’s statement was suppressed because the
court failed to make a factual finding regarding what the State
knew prior to trial. The court noted that the State disputed
Street’s assertion that he had volunteered his recollections to
the prosecutor and detective, but the court nevertheless
analyzed, albeit briefly, whether the alleged failure to
disclose those recollections violated Brady. Thus, the court
appears to have assumed that Street’s recollections were
suppressed.

    Had the Nevada Supreme Court made a finding that the
State lacked knowledge of Street’s recollections, we would be
bound to show deference to that finding. “But the state court
made no such finding.” Wiggins v. Smith, 539 U.S. 510, 530
(2003). Had the district court below made a finding
regarding the State’s knowledge, we would review it for clear
error. Weaver v. Thompson, 197 F.3d 359, 363 (9th Cir.
1999). But the district court expressly made “no factual
finding or holding as to the nondisclosure element.” We
therefore review the record de novo. See Wiggins, 539 U.S.
at 531.

    No evidence in the record contradicts Street’s assertion
that prior to trial, he provided the State with the same
                 COMSTOCK V. HUMPHRIES                       15

information that appeared in his victim impact statement.
The Nevada courts did not hold an evidentiary hearing, and
the State did not submit any declarations or other evidence
(such as a report, transcript, or recording) to contest Street’s
assertion. Although the State’s brief in opposition to
Comstock’s new trial motion claimed that Street told the
State that he did not lose the ring, arguments in briefs are not
evidence, see Barcamerica Int’l USA Trust v. Tyfield Imps.,
Inc., 289 F.3d 589, 593 n.4 (9th Cir. 2002), and the State
agreed at oral argument that we need not consider any
unsupported factual contentions in its new trial opposition
brief. Moreover, if the State’s contentions in its briefs are
relevant, they are relevant as admissions. The brief in
opposition to Comstock’s new trial motion conceded that
when pressed by the prosecutor and detective, Street
acknowledged the possibility that he might have misplaced
his ring. In its brief to the Nevada Supreme Court, the State
again effectively conceded that it had withheld Street’s
recollections, arguing that “it [is] not at all clear that what
Street told the prosecutor amounts to Brady material” and
that “even if the prosecutor tacked a little too close to [the]
wind and should have revealed the ‘inconsistent’ statement,
Comstock could not have been prejudiced by [the State’s]
withholding this information” (emphases added) (citation
omitted).

    Both in the district court below and on appeal here, the
State has not disputed Comstock’s contention that
information was suppressed. Because the State has not
argued that it was unaware of Street’s recollections and has
instead consistently taken the position that its failure to
disclose those recollections was not prejudicial, we conclude
that evidence was suppressed.
16                COMSTOCK V. HUMPHRIES

     3. The Suppression Was Prejudicial

     The suppression of favorable evidence is prejudicial if
that evidence was “material” for Brady purposes. Strickler,
527 U.S. at 282. Evidence is “material” if it “could
reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.” Id. at 290
(citing Kyles, 514 U.S. at 435). To establish materiality, a
defendant need not demonstrate “that disclosure of the
suppressed evidence would have resulted ultimately in [his]
acquittal.” Kyles, 514 U.S. at 434. Rather, the defendant
need only establish “a ‘reasonable probability’ of a different
result.” Id. (quoting United States v. Bagley, 473 U.S. 667,
678 (1985)). A “reasonable probability” exists if “the
government’s evidentiary suppression ‘undermines
confidence in the outcome of the trial.’” Id. (quoting Bagley,
473 U.S. at 678); see also United States v. Sedaghaty,
728 F.3d 885, 900 (9th Cir. 2013) (“In evaluating materiality,
we focus on whether the withholding of the evidence
undermines our trust in the fairness of the trial and the
resulting verdict.”).

    The Nevada Supreme Court determined that Comstock
had failed to show that the information in Street’s statement
“was either exculpatory or material,” or that its disclosure
would “have created a reasonable probability of a different
verdict.” The court characterized the information as “mere
speculation” with only “minimal” impeachment value,
because it did “not contradict [Street’s] trial testimony or rise
to the level of a recantation.” Those characterizations both
understated the impeachment value of Street’s recollections
and ignored their exculpatory value in light of the trial
testimony and the prosecutor’s closing argument.
                 COMSTOCK V. HUMPHRIES                       17

     At trial, Comstock attempted to elicit testimony to support
his defense that the ring had been lost and later found outside
Street’s apartment. Comstock’s cross-examination of Street
was demonstrably ineffective. When Comstock’s counsel
asked if Street had ever dropped the ring outside, Street
replied, “Not that I’m aware of.” When asked if he could
have dropped it unknowingly, he initially conceded that
possibility but immediately added that it “would have never
fallen off or dropped.” When asked if he had ever misplaced
the ring, Street answered, “Within my home or establishment,
sure.” When counsel posited that perhaps Street had left his
ring in his pants pocket and it had fallen out by the laundry
room in his apartment complex, Street responded, “I’ve never
left it in my pants.” When counsel suggested that Street may
have made a bet at a bar and given someone else the ring to
hold as collateral, Street replied, “No, sir. Means too much.”
The most counsel was able to establish was that Street could
not be certain he had never before lost his ring “outside the
apartment.”

    The disclosure of Street’s recollections would have
transformed his cross-examination and the trial. Instead of
having to ask open-ended questions exploring whether the
ring might have been dropped or lost, counsel would have
been armed with Street’s specific admission that he “may
have placed [his] ring on the ground while outside [his]
apartment washing [his] motorcycle.” Instead of groping
blindly at hypothetical laundry mishaps or bar bets gone
wrong, counsel could have deployed Street’s specific
recollection of an occasion when he removed his ring, placed
it on the ground or on an air conditioner outside, and did not
recall putting it back on. Because the State suppressed
Street’s recollections of these particular, relevant facts, “the
18                COMSTOCK V. HUMPHRIES

defense was empty handed” during Street’s cross-
examination. Sedaghaty, 728 F.3d at 900.

     We have held that impeachment evidence is material “if
it could have been used to impeach a key prosecution witness
sufficiently to undermine confidence in the verdict.” Paradis
v. Arave, 240 F.3d 1169, 1179 (9th Cir. 2001); see also
Sedaghaty, 728 F.3d at 900 (“[W]e zero in on whether the
suppressed materials could have provided an effective means
of impeachment.”). Because Street’s recollections would
have undermined the State’s narrative of safekeeping—the
very foundation of the State’s case—those recollections
should have been disclosed for impeachment purposes.

    Exculpatory evidence is material if its introduction at trial
“would have resulted in a markedly weaker case for the
prosecution and a markedly stronger one for the defense.”
Kyles, 514 U.S. at 441. Without the information in Street’s
statement, the jury was led to believe that Street would never
have simply set his prized ring on the ground or somewhere
else outside, and Comstock’s defense that the ring was found,
not stolen, was therefore implausible. The fact that Street had
told the State that he may have placed his ring on the ground,
and that he did put it either on the ground or an air
conditioner outside at some point, would have made the
State’s case markedly weaker and Comstock’s defense
markedly stronger. Street’s recollections therefore should
have been disclosed for exculpatory purposes, too.

    Supreme Court case law also instructs that the “likely
damage” from the suppression of Brady evidence “is best
understood” by reference to the prosecutor’s closing
arguments. Id. at 444. Here, the prosecutor relied on Street’s
testimony to emphatically dispute Comstock’s found-ring
                  COMSTOCK V. HUMPHRIES                       19

defense. In her closing, the prosecutor argued that the ring
could not possibly have been lost because Street kept it in a
seashell in his apartment, knew exactly where it was, and
testified as to its immense importance. The prosecutor
paraphrased Street’s testimony as stating that the ring “can’t
fall off,” “he’s never lost it before,” and “he did not put it in
his pants pocket.” She suggested that the ring could not have
been found outside Street’s apartment, because “[h]e keeps it
in a seashell or he wears it. He would never lose anything
with that significant of value.”

    The prosecutor’s arguments confirm that Street’s
testimony was the linchpin of the State’s case. That case was
built on circumstantial evidence and inference. As the State
conceded in its brief to the Nevada Supreme Court, there was
a “lack of direct evidence,” and “the State really had no direct
proof establishing exactly how Comstock came into
[possession] of the ring.” The prosecutor exhorted the jury to
infer that the ring had to have been stolen because Street’s
testimony established that it could not have been lost. Given
that the State had no direct evidence of Comstock’s guilt, its
suppression of Street’s expressed doubts and recollections
was especially prejudicial. See Amado, 758 F.3d at 1140–41
(holding that Brady evidence was material where other
evidence was weak); Aguilar, 725 F.3d at 985 (same).

     In short, because the information in Street’s impact
statement would have substantially diminished, if not
defeated, the State’s ability to prove beyond a reasonable
doubt that the ring was stolen, the State’s suppression of that
information “‘undermines confidence in the outcome of the
trial.’” Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at
678). Had the information been disclosed, there is at least a
“reasonable probability” that the result would have been
20                   COMSTOCK V. HUMPHRIES

different. Id. The state court’s contrary conclusion was an
unreasonable application of Brady and its progeny.

    We also reject the district court’s conclusion that Street’s
recollections were immaterial because Comstock could have
been charged, tried, and convicted on the theory that he had
misappropriated lost property.4 It is true that under Nevada
law, “theft” includes the misappropriation of lost property
“without reasonable efforts to notify the true owner” when
circumstances provide “means of inquiry as to the true
owner.” Nev. Rev. Stat. § 205.0832(1)(d). It is also true that
the possession of stolen property offense for which Comstock
was convicted encompasses possession of property that was
lost and misappropriated. See Nev. Rev. Stat. § 205.275(7).
However, Comstock was specifically charged with possession
of stolen property “obtained by means of larceny” (emphasis
added).5 Larceny, unlike misappropriation, requires an
intentional stealing, taking, and carrying away. See Nev.
Rev. Stat. § 205.220(1).

    We evaluate the materiality of Brady evidence based on
the crimes charged, not based on the crimes that might have


 4
   We note that the Nevada Supreme Court does not appear to have relied
on this argument, the State did not make this argument to the district court,
and the State does not make this argument on appeal. Under the
circumstances, we would be fully justified in holding that the argument
was waived. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009).
We address it on its merits only because Comstock is entitled to relief
even if the State is given every benefit of any doubt.
     5
      As Comstock points out, Nevada requires the State’s charging
document to specifically identify which form of “theft” was allegedly
committed. See State v. Hancock, 955 P.2d 183, 186 (Nev. 1998)
(affirming dismissal of indictment for lack of specificity).
                  COMSTOCK V. HUMPHRIES                       21

been charged. See United States v. Mejia-Mesa, 153 F.3d
925, 927–28 (9th Cir. 1998); United States v. Strifler,
851 F.2d 1197, 1202 (9th Cir. 1988); cf. McCormick v. United
States, 500 U.S. 257, 270 n.8 (1991) (noting that the Supreme
Court “has never held that the right to a jury trial is satisfied
when an appellate court retries a case on appeal under
different instructions and on a different theory than was ever
presented to the jury. Appellate courts are not permitted to
affirm convictions on any theory they please simply because
the facts necessary to support the theory were presented to the
jury.”). This makes sense. Brady requires prosecutors to
disclose evidence that is “material to the defendant’s guilt or
punishment.” Smith, 132 S. Ct. at 630. Guilt or punishment
cannot, of course, be premised on uncharged crimes, and
evidence that directly undermines the prosecution’s theory of
the charged crime is “plainly material” under Brady. Id.; see
also Williams v. Ryan, 623 F.3d 1258, 1265, 1266 (9th Cir.
2010) (holding that evidence was “classic Brady material”
where it was “inconsistent with the State’s theory at trial” and
provided the names of witnesses who could have “undercut
the prosecution’s theory” (internal quotation marks omitted));
Benn v. Lambert, 283 F.3d 1040, 1062 (9th Cir. 2002)
(holding the State violated Brady where it withheld evidence
that “would have substantially undermined the state’s
principal theory”). Just as a habeas petitioner alleging actual
innocence need not establish that he was innocent of an
uncharged crime, Bousley v. United States, 523 U.S. 614, 624
(1998), a petitioner alleging a Brady violation need not
establish that the suppressed evidence would have exculpated
him from an uncharged offense.

    Furthermore, even if it were permissible to disregard the
language of a charging document on the theory that the
defendant was convicted of a variant of the charged crime, we
22                COMSTOCK V. HUMPHRIES

disagree with the district court’s suggestion that Comstock
might have been convicted of possessing lost and
misappropriated property, rather than property that was
actively and intentionally stolen. The district court reasoned
that (1) the jury was instructed that “it is necessary to show
that the property was the product of theft,” and the term
“theft” includes the misappropriation of lost property, and
(2) the prosecutor, in her rebuttal closing, suggested that even
a found ring could be stolen. However, the jury instructions
did not define “theft” or suggest in any way that Comstock
could be convicted for merely possessing lost and found
property, and the prosecutor’s rebuttal closing, like the rest of
the State’s case, emphatically argued that the ring “was
clearly stolen from [Street’s] apartment.” If Comstock had
been charged and tried on the theory that he possessed a ring
that had been lost and misappropriated, there would have
been different arguments, evidence, and jury instructions. A
case of “Finders Keepers, Losers Weepers” differs
dramatically from the burglary of a dwelling (which was the
government’s effective theory at trial). We need not
speculate as to how Street’s recollections might have affected
hypothetical proceedings. The statement was material
because there is at least a reasonable probability that its
disclosure would have altered the result of the proceeding that
actually occurred. See Smith, 132 S. Ct. at 630; Banks,
540 U.S. at 699; Kyles, 514 U.S. at 434.

                    IV. CONCLUSION

     This is the rare criminal case where the entire prosecution
rested on the shoulders of one man—Randy Street. Street
had serious doubts whether there was any crime at all, and to
his credit, expressed those doubts and wrote that he recounted
to the prosecutor and detective a specific incident in which he
                 COMSTOCK V. HUMPHRIES                      23

recalled taking off the ring and did not recall putting it back
on. Rather than share this evidence with the defense, the
prosecution suppressed it. And while Brady determinations
often are difficult, this was not a close call—the key witness
had reasonable doubts about whether a crime occurred, and
the prosecution should have shared the recollections that
formed the basis of those doubts with the defense. The state
court’s contrary determination was an unreasonable
application of Brady. We therefore reverse the district
court’s judgment and instruct that the writ of habeas corpus
be granted, setting aside Comstock’s conviction and sentence.
Comstock shall be released from probationary custody unless
the State notifies the district court within 30 days that it
intends to retry him, and commences retrial within 90 days.

   REVERSED and REMANDED.
