Gilbert Aguilar v. Jeanne Woodford ( 2013 )


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  •                     FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    GILBERT R. AGUILAR,                            No. 09-55575
    Petitioner-Appellant,
    D.C. No.
    v.                         2:06-cv-00554-
    DOC-MAN
    JEANNE S. WOODFORD, Director,
    California Department of
    Corrections,                                     OPINION
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Central District of California
    David O. Carter, District Judge, Presiding
    Argued and Submitted
    October 9, 2012—Pasadena, California
    Filed July 29, 2013
    Before: Harry Pregerson and William A. Fletcher,
    Circuit Judges, and Mark W. Bennett, District Judge.*
    Opinion by Judge W. Fletcher
    *
    The Honorable Mark W. Bennett, District Judge for the Northern
    District of Iowa, sitting by designation.
    2                    AGUILAR V. WOODFORD
    SUMMARY**
    Habeas Corpus
    The panel reversed the district court’s denial of a 28
    U.S.C. § 2254 habeas corpus petition due to a violation of
    Brady v. Maryland, 
    373 U.S. 83
    (1963).
    The only question at petitioner Aguilar’s murder trial was
    the identity of the shooter. The prosecution introduced
    evidence that a police dog named Reilly had alerted to a
    “scent pad,” showing that Aguilar’s scent was present on the
    front passenger seat of the car from which the shooter
    appeared. The panel held that the prosecution’s failure to
    disclose Reilly’s history of making mistaken scent
    identifications—even though it had stipulated as much in a
    previous trial, resulting in the exclusion of evidence in that
    case—violated Brady, and that the California Court of
    Appeal’s decision to the contrary was an unreasonable
    application of Brady.
    COUNSEL
    Neil Jacob Rosenbaum (argued), Rosenbaum & Associates,
    San Francisco, California, for Petitioner-Appellant.
    Elaine Tumonis (argued), Office of the California Attorney
    General, Los Angeles, California, for Respondent-Appellee.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    AGUILAR V. WOODFORD                         3
    OPINION
    W. FLETCHER, Circuit Judge:
    Gilbert Aguilar was convicted of first-degree murder after
    a jury trial in Los Angeles County Superior Court. A young
    Hispanic man got out of a white Volkswagen Beetle and shot
    John Guerrero while Guerrero’s car was stopped at a
    stoplight. The only question at trial was the identity of the
    shooter. Aguilar’s defense was that another young Hispanic
    man, Richard Osuna, had shot Guerrero.
    The prosecution introduced evidence that a police dog
    named Reilly had alerted to a “scent pad,” showing that
    Aguilar’s scent was present on the front passenger seat of the
    white Volkswagen. The prosecution did not disclose to the
    defense that Reilly had a history of making mistaken scent
    identifications, even though it had stipulated to Reilly’s
    mistaken identifications in a different trial several months
    earlier. Following the stipulation, that court had excluded
    evidence of Reilly’s scent identification from the earlier trial.
    Reilly’s scent identification was the only evidence that
    tied Aguilar to the white Volkswagen. Putting the scent
    identification to one side, the evidence against Aguilar was
    weak. No clear motive for Aguilar to shoot Guerrero was
    ever suggested at trial. No physical evidence tied Aguilar to
    the crime. The faces of Aguilar and Osuna are very similar,
    but Aguilar is older and, at the time of the shooting, was
    significantly taller. A number of eyewitnesses identified
    Aguilar as the shooter at trial. Several of those witnesses had
    earlier given a quite different physical description to police –
    one that matched Osuna in age and height rather than Aguilar.
    4                 AGUILAR V. WOODFORD
    At trial, these witnesses changed their description to match
    Aguilar.
    The evidence suggesting that Osuna was the killer was
    substantial. Osuna’s brother was shot several days before
    Guerrero was shot. Two witnesses testified that Osuna
    jumped into a white Volkswagen Beetle to pursue Guerrero’s
    car as it drove past. One of them testified that Osuna did so
    in the belief that the “fools” in the car had shot his brother.
    That same witness testified that Osuna told her a short time
    later that he had shot a “fool.” Even so, Osuna was never
    investigated as a suspect in this case. Indeed, the prosecutor
    in this case expressly told the police not to pursue an
    investigation of Osuna.
    This case comes to us on a petition for habeas corpus
    under 28 U.S.C. § 2254.            Aguilar argues that the
    prosecution’s failure to disclose Reilly’s history of mistaken
    scent identifications violated Brady v. Maryland, 
    373 U.S. 83
    (1963), and that the California Court of Appeal’s decision to
    the contrary was an unreasonable application of Brady. We
    agree.
    I. Standard of Review
    We review de novo a district court’s decision to grant or
    deny a habeas petition under 28 U.S.C. § 2254. Campbell v.
    Rice, 
    408 F.3d 1166
    , 1169 (9th Cir. 2005) (en banc). To
    prevail in a habeas petition filed after the Antiterrorism and
    Effective Death Penalty Act of 1996 (“AEDPA”) was
    enacted, a petitioner must show that the state court’s
    adjudication of a claim:
    AGUILAR V. WOODFORD                         5
    (1) resulted in a decision that was contrary to,
    or involved an unreasonable application of,
    clearly established Federal law, as determined
    by the Supreme Court of the United States; or
    (2) resulted in a decision that was based on an
    unreasonable determination of the facts in
    light of the evidence presented in the State
    court proceeding.
    28 U.S.C. § 2254(d).
    This is a “highly deferential standard,” Woodford v.
    Visciotti, 
    537 U.S. 19
    , 24 (2002) (per curiam) (internal
    quotation marks omitted). The “contrary to” clause in
    § 2254(d)(1) applies where the state court adopts “a rule that
    contradicts the governing law set forth in Supreme Court
    cases” or “confronts a set of facts materially indistinguishable
    from those at issue in a decision of the Supreme Court and,
    nevertheless, arrives at a result different from its precedent.”
    Lambert v. Blodgett, 
    393 F.3d 943
    , 974 (9th Cir. 2004) (citing
    Lockyer v. Andrade, 
    538 U.S. 63
    , 73 (2003)). The
    “unreasonable application” clause applies where “the state
    court’s application of clearly established law” is “objectively
    unreasonable.” 
    Lockyer, 538 U.S. at 75
    . Under either clause
    of § 2254(d)(1), the law must be clearly established. There
    must be a “Supreme Court decision that ‘squarely addresses
    the issue’ in the case before the state court” or one that
    “establishes an applicable general principle that ‘clearly
    extends’ to the case before us.” Moses v. Payne, 
    555 F.3d 742
    , 760 (9th Cir. 2009) (quoting Wright v. Van Patten,
    
    552 U.S. 120
    , 123, 125 (2008)). Additionally, the
    constitutional error must have “had substantial and injurious
    effect or influence in determining the jury’s verdict.” Brecht
    6                 AGUILAR V. WOODFORD
    v. Abrahamson, 
    507 U.S. 619
    , 637 (1993) (internal quotation
    marks omitted).
    II. Background
    On July 25, 2001, John Guerrero was driving his red
    Mitsubishi westbound on Amar Road in La Puente,
    California, with four friends as passengers. The group was
    looking for somewhere to eat dinner. Guerrero was not
    affiliated with a gang. Guerrero drove past several Hispanic
    males dressed in white baggy shirts, standing near a
    “primered” white Volkwagen Beetle. Omar Soltero, one of
    Guerrero’s passengers, testified that Guerrero told the other
    passengers that he could see the Hispanic males running
    toward them in his rearview mirror. Guerrero and Soltero
    thought that the individuals might be trying to attract the
    attention of the occupants of Guerrero’s car.
    Trying to avoid any confrontation, Guerrero kept driving
    down Amar Road. Guerrero and his friends then decided to
    go to a restaurant in the opposite direction. Guerrero made a
    U-turn and drove eastbound, again passing the Hispanic
    males standing along Amar Road. The males yelled as
    Guerrero drove past. Victor Carillo, another passenger in
    Guerrero’s car, testified that they were “throwing up their
    hands” as Guerrero’s car drove by the second time. Carillo
    believed that the males were “throwing up a neighborhood”
    – in other words, indicating their neighborhood gang
    affiliation.
    Guerrero drove several more blocks and stopped at the
    front of a left turn lane at the corner of Amar Road and
    Hacienda Boulevard, waiting for a red light to change so he
    could turn northbound onto Hacienda Boulevard. There was
    AGUILAR V. WOODFORD                         7
    a KFC restaurant on the southwest corner of the intersection.
    There was a gas station at the northwest corner.
    A young Hispanic male wearing a dark baseball cap and
    a white t-shirt got out of a white Volkswagen Beetle in the
    KFC parking lot. He went into the street and approached
    Guerrero’s car. The male reached into the open passenger
    side front window with a semi-automatic handgun and shot
    Guerrero seven times, killing him. The other occupants of the
    car ducked down and were unhurt. The shooter walked
    rapidly back to the white Volkswagen, and the car drove
    away.
    Based on descriptions by Desiree Hoefer, Victor Jara, and
    Laura Jara – all eyewitnesses to the shooting – a police artist
    made a sketch of the suspect from the neck up. The sketch
    was made about a month after the murder. A probation
    officer who knew Aguilar thought the drawing looked like
    him. Police then put a photograph of Aguilar from the neck
    up in a photo “six-pack” and showed it to Hoefer and the
    Jaras. There was no photograph of Richard Osuna in the six-
    pack. All three picked Aguilar’s photograph out of the six-
    pack. Victor Jara made a positive identification. Hoefer and
    Laura Jara said that the man depicted in the photograph
    looked similar to the killer, but neither was sure that this was
    the killer.
    A. Evidence Pointing To Richard Osuna
    Aguilar’s defense at trial was that Richard Osuna, a young
    Hispanic male, also known as “Gangster”, was the shooter.
    Aguilar and Osuna were both members of the Puente Street
    Gang. Osuna’s younger brother Raymond had been shot, but
    not killed, by unknown perpetrators the week before Guerrero
    8                  AGUILAR V. WOODFORD
    was killed. At the time of Guerrero’s shooting, Aguilar was
    twenty years old, between 5’11” and 6’0” tall, and weighed
    160 pounds. Osuna was sixteen years old and between 5’5”
    and 5’7” tall.
    The sketch of the suspect, as well as booking photographs
    of Aguilar and of Richard Osuna, were put into evidence at
    trial. (Osuna’s booking photograph was taken at the time of
    his arrest for a different offense a year after the Guerrero
    murder.) The photographs of Aguilar and Osuna are
    remarkably similar. The sketch somewhat resembles both
    Aguilar and Osuna. We include the sketch and the
    photographs as appendices to this opinion.
    At the time of the murder, Aguilar lived with his
    girlfriend and mother of his child, Mary Saiz, in an apartment
    on Amar Road. Saiz and Alfred DeAnda, a friend of Aguilar,
    each testified that they saw Osuna jump into a white or gray
    Volkswagen Beetle to chase after a red car. DeAnda testified
    that he was walking down Amar Road on his way to the store
    when he encountered “Gangster” (Osuna) and five or six
    other people outside the Amar Road apartment. DeAnda
    testified that he then saw Gangster hop into a white or gray
    Volkswagen while Aguilar and Saiz remained behind.
    DeAnda heard about the shooting the following day. He
    testified that the “word on the street” was that Gangster had
    shot Guerrero.
    Saiz testified that on the day of the shooting, she, Aguilar,
    Osuna, and several others were gathered at the apartment she
    and Aguilar shared in order to celebrate Saiz’s baby shower.
    At the time, Saiz knew Osuna only as “Gangster”. The group
    saw a red car drive by the apartment. Osuna appeared to
    recognize the car and got “real antsy” after it drove by. Saiz
    AGUILAR V. WOODFORD                          9
    testified that Osuna said, “There go those vatos that shot my
    brother, fool. Fuck that. I’m going to go get those fools.”
    She testified that Osuna then got into a white Volkswagen
    Beetle driven by Rico Ballesteros and drove away. Saiz
    testified that Aguilar left the apartment complex to go to
    another friend’s house shortly after Osuna drove away. After
    the shooting Osuna returned to the apartment where Saiz and
    Aguilar were living and rushed into the bathroom to take a
    shower. Saiz testified that Osuna said, “I just shot a fool. . . .
    I got to get the gunpowder off of me.” After showering,
    Osuna changed into Aguilar’s clothes and left the apartment.
    Neither DeAnda’s nor Saiz’s testimony was entirely
    consistent with their prior statements. However, two jail
    conversations between Aguilar and Saiz recorded without
    their knowledge support the testimony DeAnda and Saiz gave
    at trial. The jury heard both conversations. In the first
    conversation, Aguilar declared, “I can’t believe I’m in jail for
    something I didn’t do.” In response, Saiz announced that she
    had “a plan already done” to find out “Richard’s” last name.
    Saiz’s plan was to go “by the pad like during the day time or
    whatever, and steal like a piece of mail.” She hoped the piece
    of mail would tell her Richard’s last name. Saiz then planned
    to phone the house from which she stole the mail “and make
    sure that that’s his last name” by pretending that she was
    calling from Richard’s school. Saiz also planned to “check
    in the records at Queen of the Valley” because Richard’s
    “brother was there the day before. . . . [W]hat reason why
    wouldn’t he want to shoot, know what I mean?” Osuna’s
    brother Raymond was treated at Queen of the Valley Medical
    Center beginning on approximately July 21, 2001. Raymond
    was discharged from that hospital on July 24 – the day before
    Guerrero was murdered. Saiz expressed reservations to
    Aguilar about approaching Osuna directly “because I . . .
    10                 AGUILAR V. WOODFORD
    have to think about the baby and us too, you know, when you
    do get out.”
    At trial, Saiz explained that during this conversation, she
    knew Richard Osuna only by his first name. She devised her
    “plan” to find out Osuna’s last name so she could disclose it
    to a police investigator. Saiz also explained that she
    eventually “chicken[ed] out” and did not follow through with
    the plan. She later found out Osuna’s last name through
    Aguilar, who had learned the name from fellow inmates.
    In the second recorded jail conversation, Saiz told Aguilar
    that she had obtained a document containing the names and
    addresses of eyewitnesses in the case. Saiz asked Aguilar
    whether she should “[s]how people” the report. He told her
    that “there’s no reason to show ’em” because “the[y’]re
    gonna go do something and get me in trouble” when “I ain’t
    even done.” Saiz then asked Aguilar if he wanted her “to
    rat,” and he told her, “Not right now.” Saiz responded, “I will
    Gilbert ’cause I’m not a south sider and look at me Gilbert
    I’m . . . falling apart[.]” Saiz also stated that she was “ready
    to rat,” because if Aguilar ratted himself he would “get killed
    in there.” She did not want to wait until “it’ll be to[o] late for
    anyone to do anything.” She stated she was “gonna tell them
    the fuckin’ whole truth.”
    Saiz then told Aguilar, “This reward, like I said it’s 50/50,
    if you get a lawyer you’ll beat it. If you don’t get a lawyer
    you’ll have a small chance maybe, know what I mean?
    Rico’s ass is already, they already he did, he was involved,
    but th – he’s still out here[.]” Aguilar responded that “[t]hat
    other fool[] stays in Hacienda Heights,” and said he wanted
    to talk to the “fool.” At the time, Richard Osuna lived in
    Hacienda Heights.
    AGUILAR V. WOODFORD                          11
    At trial, Saiz explained that by Rico, she was referring to
    Rico Ballesteros, the driver of the white Volkswagen. She
    understood the “other fool” to refer to Richard Osuna. Saiz
    also explained that she hesitated to bring Osuna’s name to the
    police because she feared doing so might put the safety of her
    family at risk. Saiz explained that “if you tell in court like I
    am right now or speak of things that you shouldn’t be telling
    others that other people are doing, . . . you get killed or
    someone comes after you and your family.” Saiz explained
    that Aguilar did not himself tell the truth because he was
    likely to be killed in prison if he was perceived as a “rat.”
    Saiz testified that at first she tried to resolve the situation
    without “ratting” Osuna out. Once Saiz identified Osuna by
    name, she and several friends approached him to ask for
    money to help her “retain a lawyer or [support] the baby.”
    She testified that “[w]e went over there because he did do the
    killing, so therefore I felt like he was responsible for me
    going through all this situation that I’m going through, and
    Gilbert [Aguilar] also.” Osuna gave Saiz his phone number,
    but when she tried to call it, the number had been
    disconnected. Saiz testified that she eventually got “fed up”
    with Osuna’s unresponsiveness and decided to tell the truth.
    She thought she would not be killed because she is not a
    “south sider” – meaning she did not belong to any gang.
    Even so, Saiz received threats after she agreed to testify.
    The police collected the jail recordings of the
    conversations between Saiz and Aguilar. In addition, defense
    counsel and a court-appointed private investigator each
    brought information about Richard Osuna to Detective
    Richard Ramirez, the lead police investigator for the Guerrero
    murder, a few months before trial. Nevertheless, the police
    never investigated Richard Osuna as a suspect in Guerrero’s
    12                 AGUILAR V. WOODFORD
    murder. Indeed, the prosecutor trying Aguilar’s case
    specifically told Ramirez “not to follow up” on the Osuna
    lead because he believed it would be “a wild goose chase.”
    The prosecutor told the jury at trial that he “instructed
    Detective Ramirez not to follow up on that lead” because it
    was “immoral” and “illegal” to do so without more evidence.
    B. Evidence Against Aguilar At Trial
    At trial, the prosecution introduced three types of
    evidence to support its case that Aguilar, rather than Osuna,
    was the killer: physical evidence, eyewitness testimony, and
    testimony about Reilly’s dog scent identification.
    1. Physical Evidence
    The prosecution had little physical evidence connecting
    Aguilar to the crime. On August 9, a police patrol stopped a
    white Volkswagen Beetle that fit the description of the car
    from the murder. The police discovered that the vehicle was
    stolen and impounded it. The police recovered fingerprints
    from the passenger side of the white Volkswagen. Aguilar’s
    prints did not match the recovered fingerprints. The police
    never tested the fingerprints to see if they matched Richard
    Osuna.
    A forensic scientist testified that all of the bullets fired at
    Guerrero had been discharged from a single firearm. The
    police never found that firearm. The police did find a live .25
    caliber bullet while searching a bedroom at the Amar Road
    apartment in which Aguilar kept some of his things. Another
    person was then living in that room. The bullets used in
    Guerrero’s murder were also .25 caliber, but they were not
    the same brand as the bullet found in Aguilar’s home. The
    AGUILAR V. WOODFORD                       13
    live bullet found in the bedroom had been “cycled through”
    a weapon, but a forensic scientist’s efforts to determine
    whether the bullet had passed through the murder weapon
    were inconclusive.
    2. Eyewitness Testimony
    Because there was limited physical evidence, the
    prosecution relied heavily on eyewitness testimony from
    seven witnesses. None of the eyewitnesses personally knew
    Gilbert Aguilar. No eyewitness had been shown a picture of
    Richard Osuna.
    The first witness, Omar Soltero, was a passenger in
    Guerrero’s car sitting directly behind Guerrero. He ducked
    down as soon as the gunman approached the passenger side
    window. During the police investigation, Soltero reported
    that the gunman was approximately 5’9” tall and about 18–20
    years old. At trial, Soltero testified that the gunman was
    taller than Soltero’s 5’3” height. He also admitted that he
    only got a “momentary glimpse” of the shooter, that he never
    saw the shooter’s face, and that he did not believe he could
    give an accurate description of the shooter outside of the fact
    that the shooter was male. Soltero never identified Aguilar at
    any point during the proceedings.
    The second witness, Victor Carillo, was also in
    Guerrero’s car. He was sitting in the middle of the back seat,
    to the right of Soltero. There is no evidence in the record as
    to how Carillo initially described the suspect to police
    investigators. At trial, Carillo estimated that the gunman was
    “probably about” 5’9” or 5’10”, and that the gunman was
    wearing a white t-shirt and black cap. Carillo admitted that,
    like Soltero, he could not identify the suspect.
    14                AGUILAR V. WOODFORD
    The third witness, Desiree Hoefer, was at the drive-
    through line at the KFC restaurant when a white Volkswagen
    Beetle pulled into the restaurant parking lot. Through her
    rearview mirror, Hoefer watched a Hispanic male get out of
    the white Volkswagen and walk out of sight. She saw that
    the male was carrying a gun and feared that she was about to
    be carjacked. After hearing gunshots, Hoefer decided to
    leave the KFC. She nearly hit the same male with her car as
    the male returned to the KFC parking lot. She looked at his
    face for less than a second.
    Hoefer is 5’0”. She told the police shortly after the
    murder that the perpetrator was a Hispanic male around 5’4”,
    15 to 17 years old, and wearing a baseball cap. A month after
    the incident, Hoefer told a police sketch artist that the
    gunman was 5’2” or 5’3” and that he was 16 to 20 years old.
    Hoefer also described the perpetrator as having a small
    mouth. After some hesitation, Hoefer identified Aguilar in a
    six-person photo lineup. The lineup Hoefer viewed did not
    include a photograph of Osuna. At the time of the lineup,
    Hoefer said that Aguilar’s photograph “looked close” to the
    suspect, but that she thought Aguilar’s “comple[x]ion was
    lighter” than the murderer’s complexion. She also thought
    that the perpetrator was younger than Aguilar. Hoefer said
    she was not “a hundred percent” sure she had the right
    person.
    At trial, Hoefer identified Aguilar as the person she had
    picked out of the lineup. Hoefer testified that she believed
    she had described the perpetrator as 5’8” or 5’10” to the
    police, though she had actually described him to the police as
    between 5’2” and 5’4.” Hoefer also stated in court that she
    continued to believe that the shooter “might have been a little
    shorter” than Aguilar. The prosecution suggested to Hoefer
    AGUILAR V. WOODFORD                       15
    that the crouching position of the shooter might have led her
    to underestimate the shooter’s height, and Hoefer agreed.
    The fourth witness, Victor Jara, was the driver of a car on
    Amar Road about four cars back from the intersection and
    one lane closer to the curb than Guerrero’s car. He was
    stopped at the same traffic light as Guerrero when he heard
    gunshots. Victor Jara took note of the shooter’s face as he
    jogged away from Guerrero’s car. He saw the shooter for
    between two and four seconds.
    Victor Jara reported to the police and to the police sketch
    artist that the suspect was a clean-shaven Hispanic male
    between 15 and 17 years old with distinctive eyebrows. After
    speaking with Victor Jara and two other eyewitnesses (Laura
    Jara and Kevin Feeney) during the initial investigation,
    Deputy Sheriff Blackmer described the suspect as 5’5” and
    130 pounds. Detective Ramirez, the lead case investigator,
    believed that it was Victor Jara who told Deputy Blackmer
    that the suspect was 5’5”. Victor Jara later told the police
    sketch artist that the suspect was about 5’6”.
    Victor Jara identified Aguilar’s photo from the same
    photo lineup of six persons presented to Hoefer. That lineup
    did not include a photograph of Osuna. At trial, Victor Jara
    expressed “absolute certain[ty]” that Aguilar was the shooter.
    He also testified at trial that the perpetrator may have been
    “taller” than the 5’6” defense counsel.
    The fifth witness, Laura Jara, was in the passenger seat of
    the car driven by her husband Victor. She heard gunshots and
    looked ahead toward Guerrero’s car. Laura saw a male
    wearing a baseball cap running away from the vehicle.
    During the initial investigation, Laura Jara described the
    16                AGUILAR V. WOODFORD
    gunman to the police as a juvenile, 15 to 17 years old. She
    could not recall whether she had given a height estimate to
    the police. However, Deputy Sheriff Blackmer described the
    suspect as 5’5” and 130 pounds after speaking to Laura Jara.
    Laura identified Aguilar in a six-person photo lineup on the
    same date as her husband, but was not certain she had
    identified the perpetrator. She said it “looks like him a lot.”
    At trial, Laura Jara stated that the person she saw looked
    very young and had dark, distinctive eyebrows. Laura Jara
    also testified that she thought the perpetrator was a “little
    taller” than the 5’6” defense counsel. Laura Jara did not
    identify Aguilar as the shooter in court, but she did identify
    him as the person she had thought “looked like” the shooter
    in the photo lineup. She also stated that she believed Aguilar
    had distinctive eyebrows like the perpetrator.
    The sixth witness, Kevin Feeney, was putting gas in his
    car at the station on Amar Road across from the KFC.
    Feeney saw Guerrero slumped in his vehicle, and then
    observed an individual running away from the scene. He was
    approximately 40 yards from the individual he saw running.
    Deputy Sheriff Blackmer described the suspect as 5’5” and
    130 pounds after speaking to Feeney and the Jaras during the
    police investigation. At trial Feeney testified that the shooter
    was “tall and slender.” Feeney never identified Aguilar at
    any point during the proceedings.
    Finally, the seventh eyewitness, Rene Valles, was the
    driver of a car facing eastbound on Amar Road, stopped in
    the far righthand lane a few cars back from the intersection.
    Valles heard gunshots. He then saw a Hispanic male run in
    front of his car and into the KFC parking lot. Valles told the
    police the suspect was 16 to 21 years old and wearing a white
    AGUILAR V. WOODFORD                         17
    t-shirt and baseball cap. He also stated that he was focused
    on the gun and saw the suspect’s face for “just a second.”
    Valles “really wasn’t sure” of the suspect’s height during the
    police investigation. The police showed Valles a lineup
    including a picture of Aguilar. Valles was unable to make an
    identification.
    At trial, Valles identified Aguilar as the shooter. This was
    the first time he had ever identified Aguilar. Valles testified
    that he had not identified Aguilar previously because he could
    not see Aguilar’s profile view in the photo lineup. Also for
    the first time at trial, Valles estimated the perpetrator’s height
    as 5’9” or 5’10”.
    To counter the eyewitness testimony, the defense used an
    expert witness on eyewitness identification. The expert
    testified that the sooner after an incident an eyewitness
    describes a suspect, the more accurate that description is
    likely to be. Further, he testified that “people overestimate
    the height” of individuals carrying guns, such that “the actual
    person” being sought “might be shorter than the height
    estimates.”
    Two things are apparent from the foregoing. First, the
    eyewitnesses’ height, weight, and age estimates during the
    police investigation more closely resemble Richard Osuna
    (no more than 5’7” and 16 years old) than Aguilar (no less
    than 5’11” and 20 years old) at the time of the murder.
    Desiree Hoefer estimated the suspect to be no taller than 5’4”.
    Victor Jara estimated him to be 5’5” or 5’6”. After speaking
    to the Jaras and Kevin Feeney, Deputy Sheriff Blackmer
    described the suspect as 5’5”. Only Omar Soltero stated to
    investigators that the shooter was taller, and even he
    estimated the shooter to be several inches shorter than
    18                AGUILAR V. WOODFORD
    Aguilar. According to expert testimony, the witnesses would
    have been expected to overestimate, not underestimate, the
    height of a man carrying a gun. The eyewitnesses’ weight
    and age estimates are also more similar to Osuna than to
    Aguilar. Deputy Sheriff Blackmer reported, after speaking to
    the eyewitnesses, that the suspect was 130 pounds. That is 20
    pounds lighter than Aguilar’s reported weight. Additionally,
    Hoefer and the Jaras estimated the perpetrator to be
    substantially younger than Aguilar.
    Second, several of the eyewitnesses changed their
    testimony at trial from the statements they had given during
    the police investigation. At least two witnesses (Hoefer and
    Victor Jara) increased their height estimates, one (Valles)
    testified to a height estimate when he had not made one
    before, and two others (Laura Jara and Feeney) testified that
    the perpetrator was tall when they had given no such opinion
    before. Hoefer, Laura Jara, and Valles also expressed greater
    certainty in their identification at trial than they had during
    the investigation. Valles identified Aguilar for the first time
    at trial, though he had not previously been able to identify
    Aguilar from a photo lineup.
    3. Dog Scent Identification
    To supplement the physical evidence and eyewitness
    testimony, the prosecution put on evidence that a trained
    scent dog, Reilly, had identified Aguilar’s scent on the white
    Volkswagen. Shortly after Aguilar was arrested, Officer Joe
    D’Allura used Reilly to perform a scent comparison test
    between Aguilar’s scent and the scent found in the white
    Volkswagen. Scent comparison tests are based on the idea
    that every person has a unique scent, and that dogs can
    identify particular scents as belonging to particular objects
    AGUILAR V. WOODFORD                       19
    and persons. A scent transfer unit extracted scent from
    Aguilar’s clothes and from the impounded vehicle. The
    extracted scents were then placed in sterile gauze “scent
    pads.”
    Reilly was first given a sample of Aguilar’s scent. Reilly
    then was led to a lineup of four scent pads, one of which had
    been collected from the passenger side of the impounded
    Volkswagen. He was trained to bark if he perceived a match
    between the sample scent and any of the scent pads. Reilly
    barked at the third scent pad, signaling a match between the
    scent pad from the Volkswagen and the scent from Aguilar’s
    clothes. While there were four scent pads in the line-up,
    Reilly only reached the third scent pad before he signaled a
    match. Reilly did not signal a match on the spent casings
    from the bullets fired at Guerrero.
    The scent test occurred on September 4, 2001, over a
    month after the murder and several weeks after the car was
    impounded. Aguilar’s scent was taken from Aguilar’s street
    clothes when he was arrested, and the scent test occurred that
    same day. It is not clear from the record when the scent was
    collected from the impounded Volkswagen. On cross
    examination, Officer D’Allura stated that the scent in the
    impounded vehicle would have had to have been present
    “within the last week” in order for it to be “picked up.” On
    redirect, D’Allura changed his testimony. He stated that
    “[t]he scent would still be in there as long as [the car]’s not
    being used by other people and things.”
    During the remainder of the trial, the prosecution used
    Reilly’s scent evidence to support the eyewitnesses’ claim
    that Aguilar was “in fact, the shooter.” The prosecutor asked
    Mary Saiz to explain the presence of Aguilar’s scent in the
    20                AGUILAR V. WOODFORD
    Volkswagen. Saiz responded that perhaps it was her scent the
    dog identified. She testified that she sometimes wore
    Aguilar’s clothes and had ridden in Ballesteros’s car. The
    prosecutor also emphasized the dog scent evidence on cross-
    examination of the defense’s court-appointed investigator,
    suggesting that Reilly’s scent match made the case
    “miraculously strong.” The prosecutor raised the scent
    evidence yet again while cross-examining the defense’s
    expert on eyewitness testimony.
    The main theme of the prosecutor’s closing summation
    was that the defense could not “explain why Gilbert Aguilar’s
    scent was in the same particular vehicle that was responsible
    for following the victims to the murder location.” The
    prosecutor discounted the defense’s claim that Osuna and
    Aguilar looked similar, referring to them disparagingly as
    “twins.” He then used the scent evidence to cast doubt on the
    defense’s theory of the case. “[T]hese two twins not only
    look alike, but they smell alike. So we not only have a look-
    alike guy, we have a smell-alike guy as well – that being
    Richard Osuna and Gilbert Aguilar.” More particularly, if
    “Mr. Osuna is, in fact, the shooter in this case,” the jury
    “would be accepting an incredible coincidence that Mr.
    Aguilar’s scent was in the passenger side of that
    Volkswagen.” Further, it would also be “accepting another
    incredible coincidence”:
    That the actual shooter, Richard Osuna, the
    person responsible for this crime — his scent
    just so happened to have evaporated from that
    scent because of what Mary did. Wearing
    clothing on some prior occasion before the
    murder even occurred. So how that scent
    AGUILAR V. WOODFORD                        21
    managed to overtake Richard Osuna’s scent
    on July 25th remains a mystery.
    The prosecution argued that its theory of the case did not
    require the jury to accept such incredible coincidences, not
    least because “[w]e have the scent for Mr. Aguilar in the seat
    in which the gunman arose.” The prosecutor concluded: “[I]f
    you do acquit Mr. Aguilar, [remember] what version of the
    facts you’re really accepting. You’re accepting all the
    coincidences that his identical twin and smell-alike person is
    the one who [is] really responsible. You’re accepting all the
    incredible coincidences that Gilbert Aguilar just so happened
    to be everywhere at the time his twin committed this
    particular offense.”
    At the conclusion of the trial, the jury received an
    instruction on the dog scent evidence stating that “[e]vidence
    of dog tracking has been received for the purpose of showing
    . . . that the defendant is a perpetrator of the crime of
    murder.” The jury was also instructed to “consider the
    training, proficiency, experience, and proven ability, if any,
    of the dog” in determining the weight given to the dog scent
    evidence.
    C. Jury Deliberation and Verdict
    After a six-day trial, the jury began deliberating on
    October 21, 2002. It deliberated for four days. While
    deliberating, the jurors asked for a reading of the testimony
    of Desiree Hoefer, Kevin Feeney, and Rene Valles, as well as
    Victor Jara’s description of the suspect. The jurors also
    requested a response from the judge to the following
    question: “Is the fact that the D.A.’s office did not pursue the
    ‘Richard Osuna’ lead considered evidence? Is it something
    22                AGUILAR V. WOODFORD
    we should deliberate about?” The court responded, “The
    state of mind of the investigator or the prosecutor, except as
    it relates to a bias, intent or other motive to fabricate
    evidence, is not relevant to the guilt or innocence of the
    [defendant].”
    During the third day of deliberations, Juror No. 2
    approached the court about a conversation he had overheard
    during a break in the trial. He had seen several eyewitnesses,
    including Victor Jara, Desiree Hoefer, and Rene Valles,
    apparently talking about the case. The court dismissed Juror
    No. 2 because the juror could not “evaluate the testimony of
    those three witnesses just based on what he heard in court.”
    Aguilar’s counsel argued for a mistrial, pointing out that
    the witness testimony on height and age had changed
    substantially from the police investigation. He argued that
    Juror No. 2’s report suggested that the witnesses may have
    “cooked their testimony,” and that a jury could not make a
    “reasonable” or “accurate determination” about Aguilar’s
    guilt without that information. The court denied Aguilar’s
    motion; it found that Aguilar’s counsel had already
    sufficiently cross-examined the eyewitnesses about the
    discrepancies in their testimony.
    Juror No. 2 was dismissed no earlier than 9:18 am on
    October 24. With the alternate seated, the reconstituted jury
    rendered a verdict by 11:23 am that same day. The jury
    convicted Aguilar on both counts, and he was sentenced to 50
    years to life in prison.
    AGUILAR V. WOODFORD                        23
    D. Brady Evidence
    Unbeknownst to defense counsel at the time of trial, the
    prosecution had stipulated in another case only a few months
    earlier that Reilly, the scent dog, had made mistaken
    identifications on two prior occasions. In People v. White,
    No. BA 212658 (L.A. Cty. Super. Ct. Mar. 19, 2002), the
    prosecution sought to introduce testimony from Officer Joe
    D’Allura about a scent identification made by Reilly
    implicating White. The prosecution stipulated that in
    November 1997 Reilly had identified two different men as
    the source of scent on the murder suspect’s shirt, and that in
    a 2001 case, People v. Bruner, No. BA 216390 (L.A. Cty.
    Super. Ct.), Reilly had identified as the perpetrator of a crime
    an individual who was in prison at the time the crime was
    committed. After an evidentiary hearing on dog scent
    lineups, the White court ruled that the dog scent procedures
    Officer D’Allura used with Reilly “were so flawed” that the
    judge would “not allow the dog scent lineup in.”
    After the White case concluded, the Los Angeles County
    Public Defender wrote a letter to the Los Angeles District
    Attorney, Steven Cooley, dated March 20, 2002. The County
    Public Defender detailed the facts in White, and stated:
    I bring this to your attention because I
    believe that this information constitutes Brady
    discovery and I believe that at a minimum this
    information should be disclosed to every
    defense attorney who represents or has
    represented an individual in a case in which
    Mr. D’Allura will or has presented evidence
    regarding his dog Reilly’s ability to detect
    scents.
    24                 AGUILAR V. WOODFORD
    In addition, I request that you order an
    investigation into all the cases in which Reilly
    has participated in scent lineups.
    By the time the prosecution introduced the dog scent
    evidence in Aguilar’s case, Reilly no longer worked as a
    scent dog.
    The Los Angeles District Attorney’s office prosecuted
    Aguilar’s case six months after the White case concluded. At
    Aguilar’s trial, the prosecutor trying the case did not disclose
    to the defense the earlier mistaken identifications, the
    stipulation in the White case, or the letter to District Attorney
    Cooley from the County Public Defender. Aguilar’s trial
    counsel moved to strike the dog scent evidence for
    foundation, but not for relevance or admissibility. Counsel
    has since declared that he would have objected to the
    evidence’s admissibility had he been aware of Reilly’s history
    of mistaken identifications, of the White stipulation, or of the
    letter to Cooley.
    E. Appeal and Collateral Attack
    Aguilar’s appellate counsel first discovered the
    exculpatory evidence about Reilly. Aguilar argued to the
    California Court of Appeal that “the trial court deprived [him]
    of due process when it denied his motion for a new trial based
    on evidence revealed by a juror during deliberations.”
    Aguilar also filed a habeas petition in the Court of Appeal
    arguing that (1) the prosecution had violated Brady v.
    Maryland by failing to disclose the exculpatory evidence –
    that Reilly had a history of misidentification, and (2) his
    counsel was ineffective for failing to challenge the
    admissibility of the dog scent evidence.
    AGUILAR V. WOODFORD                       25
    The California Court of Appeal affirmed Aguilar’s
    conviction and denied his habeas petition in a single
    disposition. The court determined that the failure to grant
    Aguilar’s motion for a new trial did not violate his rights.
    Further, the court found no ineffective assistance of counsel
    or Brady violation. It noted that the “[u]se of dog-scent
    evidence in this case was of questionable probity,” and
    concluded that the evidence was immaterial because, had the
    jury been given such information, “it is not reasonably
    probable that . . . the result would have been different.”
    Aguilar petitioned for review in the California Supreme
    Court, but his petition was denied without comment. The
    California Court of Appeal decision is the last reasoned state-
    court decision. See Ylst v. Nunnemaker, 
    501 U.S. 797
    , 805
    (1991).
    Aguilar petitioned for habeas corpus in federal district
    court in 2006 on all three issues. The magistrate judge
    hearing the case recommended that the petition be denied.
    The district court adopted the magistrate judge’s
    recommendation without comment. It dismissed the action
    with prejudice and denied Aguilar a certificate of
    appealability. Aguilar appealed to this court, and we granted
    a certificate of appealability.
    Aguilar argues on appeal that the state court unreasonably
    applied clearly established Supreme Court law in two ways.
    First, he argues that the state court unreasonably determined
    that the prosecutor’s failure to disclose evidence of Reilly’s
    misidentifications was immaterial under Brady v. Maryland.
    Second, he argues that the state court unreasonably
    determined that Aguilar’s inability to put on Juror No. 2 as a
    witness at his trial did not violate his right to present a
    26                AGUILAR V. WOODFORD
    complete defense. We agree with Aguilar’s Brady argument.
    We do not reach his second argument.
    III. Brady
    The State concedes that Brady is “clearly established
    Federal law, as determined by the Supreme Court of the
    United States.” 28 U.S.C. § 2254(d)(1). Thus, the question
    before us is whether the state court reasonably applied Brady
    to the facts in Aguilar’s case. A Brady claim has three
    components. There must be (1) evidence that is exculpatory
    or impeaching (2) that is suppressed by the state and (3)
    resulting prejudice. Strickler v. Greene, 
    527 U.S. 263
    ,
    281–82 (1999).
    1. Exculpatory or Impeaching Evidence
    There is no doubt that Reilly’s history of making
    erroneous scent identifications is exculpatory evidence.
    “[I]mpeachment, as well as exculpatory, evidence falls within
    Brady’s definition of evidence favorable to the accused.”
    United States v. Marashi, 
    913 F.2d 724
    , 732 (9th Cir. 1990)
    (internal quotation marks omitted). “Any evidence that
    would tend to call the government’s case into doubt is
    favorable for Brady purposes.” Milke v. Ryan, 
    711 F.3d 998
    ,
    1012 (9th Cir. 2013). The evidence not disclosed by the
    prosecution showed that Reilly had a record of mistaken scent
    identifications. Because Reilly’s identification tied Aguilar
    to the white Volkswagen, the undisclosed evidence is
    unquestionably “favorable for Brady purposes.” 
    Id. AGUILAR V. WOODFORD
                            27
    2. Suppression
    Aguilar also demonstrated that the prosecution had
    knowledge of this exculpatory evidence. Aguilar attached to
    his state-court habeas petition the reporter’s transcript in
    White, No. BA 212658 (L.A. Cty. Super. Ct.), the case in
    which the Los Angeles District Attorney’s office stipulated to
    Reilly’s mistaken scent identifications, and in which the trial
    judge excluded evidence about Reilly. Aguilar also attached
    the letter from the Los Angeles County Public Defender to
    the Los Angeles District Attorney, Steven Cooley, dated six
    months prior to Aguilar’s trial and specifically stating that, in
    his view, the record of Reilly’s misidentifications was Brady
    material.
    The State argued to the California Court of Appeal in this
    case that knowledge of the Brady evidence could not be
    imputed to the trial prosecutor. For good reason, the State
    has not made that argument to us. The individual prosecutor
    at Aguilar’s trial may or may not have possessed Brady
    information. Joe D’Allura, who testified in Aguilar’s case,
    was Reilly’s handler in the White case. D’Allura stated at
    trial, in response to questioning by the trial prosecutor, that he
    knew about Reilly’s performance in prior gang-related
    homicides. If the prosecutor in Aguilar’s case was unaware
    of Reilly’s prior performance, either he was hasty in
    preparing his witness or D’Allura deliberately concealed from
    him Reilly’s prior record of misidentifications.
    But even if the trial attorney did not himself possess the
    exculpatory evidence, knowledge of that evidence is imputed
    to him under Brady. First, each “individual prosecutor has a
    duty to learn of any favorable evidence known to the others
    acting on the government’s behalf” and to disclose it to the
    28                 AGUILAR V. WOODFORD
    other side. Kyles v. Whitley, 
    514 U.S. 419
    , 437 (1995). This
    includes evidence held by other prosecutors. The Public
    Defender’s letter, which put the State on notice that the prior
    Reilly cases were Brady evidence, was addressed specifically
    to District Attorney Steven Cooley. The prosecutor in
    Aguilar’s case was employed by District Attorney Cooley.
    Knowledge of the Brady evidence therefore is imputed both
    to Cooley and, by extension, to prosecutors working in his
    office.
    Second, it is clearly established that “Brady suppression
    occurs when the government fails to turn over even evidence
    that is known only to police investigators and not to the
    prosecutor.” Youngblood v. West Virginia, 
    547 U.S. 867
    ,
    869–70 (2006) (per curiam) (quoting 
    Kyles, 514 U.S. at 438
    );
    see also United States v. Blanco, 
    392 F.3d 382
    , 393-94 (9th
    Cir. 2004) (“Exculpatory evidence cannot be kept out of the
    hands of the defense just because the prosecutor does not
    have it, where an investigating agency does.” (internal
    quotation marks omitted)). Here, even if the prosecutor’s
    office had not had the Brady material, Reilly’s handler Joe
    D’Allura, a “scenting K-9 handler with the Los Angeles
    County Sheriff’s Department,” clearly did. D’Allura’s
    testimony about the reliability of Reilly’s scent identifications
    addressed precisely what had been at issue in White, and
    D’Allura has admitted he had knowledge of previous trials
    involving Reilly’s misidentifications. Finally, even if
    D’Allura himself had not been aware of Reilly’s
    misidentifications, it is enough that other members of the
    Sheriff’s Department were aware of them.
    AGUILAR V. WOODFORD                       29
    3. Prejudice
    The state court based its decision on the third prong of
    Brady, concluding that Aguilar was not prejudiced by the
    failure of the prosecution to disclose Reilly’s record of
    misidentifications. “To determine whether prejudice exists,
    we look to the materiality of the suppressed evidence.”
    Jackson v. Brown, 
    513 F.3d 1057
    , 1071 (9th Cir. 2008).
    Brady evidence is material if “the favorable evidence could
    reasonably be taken to put the whole case in such a different
    light as to undermine confidence in the verdict.” Kyles v.
    
    Whitley, 514 U.S. at 435
    . Aguilar does not need to prove that
    a different result would have occurred in his case. He needs
    to show only that the state court unreasonably decided that
    there was not “a reasonable probability of a different result.”
    
    Id. at 434 (internal
    quotation marks omitted).
    If the Brady evidence had been presented to the Aguilar
    court, it is virtually certain that the trial judge would have
    ruled as did the trial judge in White by excluding the evidence
    of Reilly’s scent identification.            In at least two
    contemporaneous California state court trials, defense
    attorneys successfully challenged the admissibility of dog
    scent lineups. See White, No. BA 212658; People v. Rhoney,
    No. 94HF0957 (Orange Cty. Super. Ct. 1998) (dog scent
    evidence excluded because it was more prejudicial than
    probative). One of those cases, White, was before the same
    court, with the same District Attorney’s office, and involved
    the same dog. Further, shortly after Aguilar’s trial, the
    California Court of Appeal found that “evidence of Reilly’s
    scent identification was admitted in error” in a different
    criminal proceeding because it was not adequately supported
    by scientific evidence. People v. Mitchell, 
    110 Cal. App. 4th 772
    , 790–94 (2003); see also People v. Willis, 
    115 Cal. App. 30
                    AGUILAR V. WOODFORD
    4th 379, 381 (2004) (finding in a case involving a different
    dog that “the dog scent evidence was improperly admitted”).
    The court in Aguilar’s case already seemed receptive to
    excluding the dog scent evidence, even without knowledge of
    the stipulation in the White case. At trial, Aguilar’s counsel
    objected to that evidence on grounds of foundation, arguing
    that the control scent pads were unidentified and may have
    been prepared improperly. The court deferred ruling on the
    objection but stated, “I am sure it is likely [the prosecution]
    will be happy to strike the whole thing because [D’Allura]
    was real honest. He had no idea where in the world the pads
    came from . . . .” Aguilar’s attorney did not renew his
    foundation objection. Given that the trial court was already
    concerned about the admissibility of the dog scent evidence,
    we are confident that it would have excluded that evidence if
    the Brady material had been presented to it.
    Even if D’Allura’s testimony about Reilly had been
    admitted into evidence, at the very least a reasonable state
    court would have concluded that the Brady evidence provided
    powerful impeachment material. Despite being asked in jury
    instructions to consider the “proven ability, if any, of the dog”
    in determining the weight to give to the dog scent evidence,
    the jurors in Aguilar’s case were presented no evidence about
    the reliability of Reilly as a scent dog. Thus, they had no
    reason to question the accuracy of Reilly’s identification of
    Aguilar.
    A reasonable state court would have concluded that there
    was a reasonable probability that the jury would have reached
    a different verdict if Reilly’s dog scent identification had not
    been presented to the jury, or had been impeached by the
    evidence of Reilly’s earlier misidentifications and the White
    AGUILAR V. WOODFORD                        31
    court stipulations. The gunman’s identity was the only issue
    in Aguilar’s case. Absent Reilly’s dog scent testimony, there
    was no corroborating evidence for the shaky eyewitness
    identifications. There was no forensic evidence, murder
    weapon, or confession. The prosecution did not tie Guerrero
    and Aguilar to each other in any way. The only motive given
    for the killing was the unsubstantiated suggestion that
    Guerrero had trespassed into the territory of Aguilar’s Puente
    Street gang, and this theory was suspect given that Guerrero
    was shot numerous times at close range while his passengers
    – equally trespassing – were left unharmed.                The
    prosecution’s own gang expert testified that the fact that only
    Guerrero was shot indicates that he was the intended target,
    undercutting the government’s theory that this was a gang
    rivalry shooting. Richard Osuna, a suspect who had a motive
    to commit a targeted shooting, and who more closely
    resembled the eyewitness descriptions, had not been
    investigated.
    The state court misstated the nature of the eyewitness
    testimony, making it appear stronger than it was. The Court
    of Appeal wrote that “Kevin Feeney . . . told police the
    shooter was ‘tall and slender,’” when in fact Feeney first
    stated that the shooter was “tall and slender” at trial. The
    eyewitness testimony at trial clearly gave the jury pause, even
    when reinforced by the unimpeached dog scent evidence.
    The jurors asked to rehear significant portions of the
    eyewitness testimony during their deliberation. Given that
    the identity of the killer was the only question in the case, “it
    does not seem possible that the jury would have deliberated
    . . . over several days if the jurors did not have serious
    questions as to the credibility of the eyewitnesses.” Gibson
    v. Clanon, 
    633 F.2d 851
    , 855 n.8 (9th Cir. 1980); see also
    Rhoden v. Rowland, 
    172 F.3d 633
    , 637 (9th Cir. 1999)
    32                AGUILAR V. WOODFORD
    (deliberations of nine hours over three days suggests jurors
    “did not find the case to be clear cut”). The dog scent
    evidence provided the only corroboration that the
    eyewitnesses had seen what they testified to at trial, rather
    than what almost all of them had told the police immediately
    after the shooting.
    The prosecution emphasized the importance of the dog
    scent identification throughout trial. The State now argues to
    us that “the dog scent evidence in this case did not prove that
    Petitoner was in the Volkswagen on the date of the murder”
    because the scent would not last that long. But the State took
    a very different position at trial. While defense counsel
    argued that the dog scent evidence was not probative, the
    prosecution consistently contended that the evidence
    corroborated the testimony that Aguilar was “in fact, the
    shooter.” In his closing argument, the prosecutor said that the
    relevant question was whose scent was present “on July 25th”
    (the date of the murder). The jury was told to use the dog
    scent identification “for the purpose of showing . . . that the
    defendant is a perpetrator of the crime of murder.” The State
    cannot now argue with a straight face that the evidence upon
    which it relied so heavily at trial was, in fact, not probative.
    The strength of the unimpeached dog scent evidence at
    trial also forced Aguilar’s counsel to make a strategic
    concession in his closing argument that Aguilar had sat in the
    white Volkswagen Beetle. Aguilar’s counsel during closing
    arguments admitted that the scent evidence shows that
    “[Aguilar] at some time sat in that car.” He stated, “I don’t
    doubt that Gilbert sat in that white Volkswagen.” Had
    Reilly’s dog scent evidence been excluded, or had counsel
    been able to impeach it using the Brady evidence, counsel
    would never have made this concession.
    AGUILAR V. WOODFORD                       33
    In every case where a federal or California state court has
    found dog tracking or scent identification Brady evidence to
    be immaterial, the defendant was convicted on evidence
    stronger than, and independent from, the dog scent
    identification. In such cases, there was physical evidence to
    support the conviction, see Epperly v. Booker, 
    997 F.2d 1
    , 10
    (4th Cir. 1993) (bloodstained clothes with head hair
    resembling Epperly’s hair), a known relationship between the
    defendant and the victim, see Sherer v. Stewart, No.
    06-1635-RSM-JPD, 
    2008 U.S. Dist. LEXIS 118661
    at *3,
    *57–59 (W.D. Wash. June 20, 2008) (history of violence
    toward victim); 
    Willis, 115 Cal. App. 4th at 387
    (same), or
    other evidence corroborating guilt, see Sherer v. Sinclair,
    476 F. App’x 433, 433 (9th Cir. 2012) (mem.) (“[G]iven the
    strength of the evidence against petitioner versus the relative
    weakness of the dog tracking evidence, petitioner has not
    demonstrated a reasonable probability that disclosure of the
    allegedly suppressed dog tracking report would have
    produced a different result.”); People v. Herrera, No.
    B181092, 2006 Cal. App. Unpub. LEXIS 8638, at *8, *28
    (Cal. Ct. App. Sept. 28, 2006) (mem.) (defendant testified and
    admitted he lied); 
    Mitchell, 110 Cal. App. 4th at 794
    (admission to third party of guilt); People v. Rivera, No.
    B166838, 2004 Cal. App. Unpub. LEXIS 10517, at *3–4, *20
    (Cal. Ct. App. Nov. 17, 2004) (perpetrator chased and
    arrested minutes after attack). In each of these cases, the
    evidence to convict was sufficient even absent the dog scent
    identification because the prosecution had independently
    proven guilt beyond a reasonable doubt. Here, in contrast,
    the only evidence in addition to Reilly’s scent identification
    was shaky eyewitness testimony.
    34                AGUILAR V. WOODFORD
    Conclusion
    Reilly’s scent evidence was the only evidence at trial
    linking Aguilar to the getaway car, as well as the only
    evidence corroborating strikingly weak eyewitness
    identifications. We conclude that the prosecution’s failure to
    disclose that Reilly had a history of mistaken identifications
    violated Brady v. Maryland, and the California courts’
    decision to the contrary was an unreasonable application of
    Brady.
    We grant Aguilar’s petition and reverse the district
    court’s judgment on the Brady claim. We do not reach
    Aguilar’s other argument. We direct that a conditional writ
    of habeas corpus issue, requiring the State of California to
    release Aguilar from custody unless it grants him a new trial
    to commence within a reasonable period of time to be
    determined by the district court.
    REVERSED and REMANDED.
    AGUILAR V. WOODFORD   35
    APPENDICES