dissenting.
I cannot agree with the majority’s rigid application of the exhaustion doctrine as a ground for denying relief, in the face of the prior lengthy state court proceedings on substantially the same issue presented to the district court. Though the newly dis*676covered evidence, which caused the district court to reverse its position and grant Lan-dano’s petition, may be a new development for the petitioner, it is not for the State. It had possession of the information during the entire habeas corpus proceedings in the state courts and during the initial hearing before the United States District Court and failed to fulfill its constitutional duty to divulge the the evidence. Under such circumstances and because the purpose and spirit of the doctrine of exhaustion does not require that the issue in the federal court be framed precisely in the same terms as it was in similar proceedings in the state court, I respectfully dissent.
I.
The district court denied Landano’s initial petition for habeas corpus, although deeply troubled by the record before it. Even then the record demonstrated the risks that an innocent person might have been convicted of a “despicable crime,” but the court considered itself powerless to grant relief in light of prior precedent. Landano v. Rafferty, 670 F.Supp. 570, 580-84 (D.N.J.1988), aff'd, 856 F.2d 569 (3d Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1127, 103 L.Ed.2d 189 (1989). That precedent required it to accept as binding the credibility finding of the state court in its post-conviction proceedings concerning Portas’s recantation. Furthermore, even though it initially found evidence that had been suppressed “relevant to the impeachment of Roller and Roth,” it concluded that the suppressed evidence was not material in light of Pascuiti’s trial testimony linking the killer to the driver of the getaway car and Portas’s identification of Landano as that driver. Id. at 584-88.
The newly found evidence, however, cast a different light upon the district court’s initial conclusion. Evaluating the new information presented, the same district court found that:
[EJvidence which may have exculpated the petitioner and inculpated another had been systematically withheld from the petitioner and his counsel. That information coupled with the matters set forth in the court’s previous opinion, affords to the court the opportunity to render the justice to the petitioner which was previously denied.
Landano v. Rafferty, 126 F.R.D. 627, 630 (D.N.J.1989). Accordingly, the district court granted habeas corpus relief.
Throughout this litigation’s lifetime, the petitioner had languished in prison for an excess of thirteen years. Only his passionate persistence in seeking to prove that he was framed, and not the cop killer a troubled jury found him to be after deliberating more than a day and a half and receiving an Allen charge, allowed him to uncover the new evidence. Although the majority, like the district court, finds “Landano’s new allegations deeply troubling,” it rejects the district court’s decision to grant a conditional writ of habeas corpus on the ground that Landano has not exhausted his state remedies as to the new evidence presented.
The majority appropriately recognizes, however, that the exhaustion doctrine is not a jurisdictional requirement but a juridical development to accommodate federalism and the sovereignty of the state. It seeks, to promote comity and serves to “minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners’ federal rights.” Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981).
A.
The goal in applying the exhaustion doctrine, as developed by the judiciary, see Ex parte Hawke, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944), and later codified, 28 U.S.C. § 2254, is to balance a civilized society’s respect for personal liberty and justice against the principles of comity. The exhaustion doctrine, however, was never intended to be used “as a blunderbuss to shatter the attempt at litigation of constitutional claims without regard to the purposes that underlie the doctrine and that called it into existence.” Braden v. 30th *677Judicial Circuit Court, 410 U.S. 484, 490, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973).
A claim for habeas corpus relief once heard by a state court is considered exhausted unless it “is so clearly distinct from the claims [the petitioner] has already presented to the state courts that it may fairly be said that the state courts have had no opportunity to pass on the claim.” Humphrey v. Cady, 405 U.S. 504, 517 n. 18, 92 S.Ct. 1048, 1056, 31 L.Ed.2d 394 (1972). This requires that the federal habe-as corpus claim be the substantial equivalent, not book and verse, of the earlier state court claim. Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). This similarity should extend to both the facts and the legal theories which form the basis of the petition. Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir.1986). Merely presenting additional evidence to the federal court does not make the claim unexhausted. The Supreme Court has unequivocally stated: “We have never held that presentation of additional facts to the district court, pursuant to that court’s directions, evades the exhaustion requirement when the prisoner has presented the substance of his claims to the state courts.” Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986).
The exhaustion doctrine should not be applied rigidly in a vacuum; its application should reflect the factual complexities of each case, with emphasis on speed, judicial economy, and manifest justice. See Hensley v. Municipal Court, 411 U.S. 345, 350, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294 (1973). As one commentator has written:
To be effective, the exhaustion doctrine must be flexible. It must present the federal courts with general guidance, but permit them to appraise the circumstances in each case with sensitivity to competing interests. The doctrine is, or ought to be, a fact-oriented rule of prudence and discretion, applied on a case-by-case basis to orchestrate the exercise of federal jurisdiction in an effective manner without disrupting or displacing the work of the state court.
Yackle, The Exhaustion Doctrine in Federal Habeas Corpus: An Argument for a Return to First Principles, 44 Ohio St.L.J. 393, 394 (1983).
In the interests of comity, a ritualistic formalism should not be exalted over a prudential application of substantial equivalence. After all, the doctrine is based on the interests of comity between sovereign powers, not the erection of a stone wall to bar justice in the face of substantial and good faith compliance. A petitioner should not be required, as the Court of Appeals for the First Circuit has held, to adhere “inflexibly to the legal theories and factual allegations recited to the state courts.” Williams v. Holbrook, 691 F.2d 3, 6 (1st Cir.1982).
It is also crucial to realize that exhaustion requires merely that the state courts be given a fair opportunity to address the federal claim. As this court has stated, the principle does not require that the state courts have considered the claim precisely as made in the federal habeas court. Gonce v. Redman, 780 F.2d 333, 336 (3d Cir.1985). Nor does it require that the state be given more than one such opportunity. Keller v. Pestock, 853 F.2d 1122, 1130 (3d Cir.1988).
In his motion to reopen the habeas corpus proceedings in the district court, Lan-dano claimed that the state had violated his constitutional right to the disclosure of exculpatory evidence by failing to turn over certain material items to him that were in its possession and control which would have supported his claim that he had been misidentified. He therefore argued that his due process rights had been violated. In its prior opinion, the district court had concluded that a state agent involved in the prosecution of Landano had made an im-permissibly suggestive statement to Portas prior to his courtroom testimony; that the prosecution had suppressed information about co-defendant Roller’s additional activities as well as information concerning a police investigation of Roth’s business dealings. 670 F.Supp. 577-88. In the words of the district court it had already determined that “the prosecution either commit*678ted affirmative acts of misconduct or breached its Brady obligation with respect to three of the State’s four key witnesses against Landano.” 126 F.R.D. at 646.
In petitioner’s motion to reopen, the district court now found that the prosecution did not turn over an additional police report which could have further impeached Roth, or a Hudson County prosecutor envelope which memorializes an apparent eyewitness identification of Forni as the getaway driver. The court further found that the prosecution did not turn over the two pieces of evidence directly at issue here. The court stated:
There is no question that the record in this matter exposes a pattern of failures by the prosecution in this case to live up to its good faith duty to turn over exculpatory information. This pattern supports the position asserted by Landano from the outset that the prosecution suppressed evidence exculpatory to him and inculpatory of Forni.
Id.
B.
The new evidence which Landano now presents is consistent with the evidence he presented in his post-conviction proceeding in the state courts. The new evidence implicates the verdict in the same way the evidence that had been presented to the state courts did, most significantly the evidence that Forni reputedly organized armed robberies and committed similar crimes in the past with Roller, and that Portas originally had picked someone other than Landano, possibly Forni, out of the photographic array. It points to Forni, and not Landano, as Officer Snow’s killer.
The evidence introduced in the state proceedings regarding Roller implicates Forni, by demonstrating a pattern of criminal activity involving Roller and Forni, a pattern into which the robbery leading to the shooting of Officer Snow fits very nicely. The evidence regarding Portas’ identification proved that Landano did not shoot Officer Snow because he was not the driver of the getaway car (whose driver shot Snow), and possibly, if Forni’s photo was identified, that Forni was the killer. It also seriously questions the reliability of the witness identifications of Landano. These are exactly the same implications which are drawn from the new evidence. To the extent that the State was able to review the evidence and reach a decision concerning this evidence, it should be found that this gave the State its requisite fair opportunity to assess Landano’s Brady claim in its totality.
Additionally, Landano requested and was denied, at the state level, further and more complete discovery into withheld evidence. 126 F.R.D. at 641. If this discovery had been granted, the additional evidence in support of misidentification which Landano now presents quite likely would have been discovered, and thus would have been before the state court. This request, in combination with the other proven instances of withheld evidence, gave the State a fair opportunity to correct the constitutional wrong it had perpetrated against Landano.
Furthermore, Landano specifically argued, prior to discovering the evidence which forms the basis of his new application, that there was most likely more evidence, possibly relating to Pascuiti’s identification, which had been withheld. Landa-no’s counsel argued during the hearing on his original petition to the district court:
Important not only for Portas’ testimony, but again, the record shows that S-2 [a photographic display which contained pictures of Landano and Forni] was shown to Jacob Roth. The record is unclear, but I think there is an inference that S-2 was also shown to Jonathan Roth, your Honor, an interesting issue for me that is unresolved is what about Joseph Pascui-ti. Joseph Pascuiti is the only witness who saw the killing. He saw a man with closely cropped curly hair, no mustache. That is a description that matches a little of Forni.
Counsel was able to make this argument without the benefit of the newly discovered evidence concerning Pascuiti and Basapas. Counsel’s ability to make this argument, and I suppose, though it is not in the record, that a similar argument was made in the state court, demonstrates that the *679same “method of analysis” applied by the district court following the introduction of the new evidence was available to the state courts. This was true even without the direct evidence now presented, thus giving the state judicial system the fair opportunity required to constitute exhaustion of state remedies. See Ross v. Pestock, 868 F.2d 689, 641 (3d Cir.1989).
Similarly, Landano’s contentions in the state courts regarding the destruction and withholding of evidence relating to witness identifications of Forni, in combination with his denied requests for additional discovery, allowed the state court a fair opportunity to examine Landano’s claim as now presented. As the trial court appropriately noted in its opinion, “this is not a case in which the state court had no indication that the prosecutor had violated Landano’s due process rights by suppressing exculpatory evidence.” 126 F.R.D. at 643.
Thus, this is not a case “in which the prisoner has attempted to expedite federal review by deliberately withholding essential facts from the state courts.” Vasquez, 474 U.S. at 260, 106 S.Ct. at 622. On the contrary, whatever facts were withheld here were by the police and the prosecution. What the district court had before it on the motion to reopen was supplemental evidence, newly discovered in the possession or control of the prosecution, after an intense and desperate search by the prisoner. Thus, I would conclude that this supplemental evidence “did not fundamentally alter the legal claim already considered by the state courts and, therefore, did not require that [petitioner] be remitted to state court for consideration of that evidence.” Id. at 260, 106 S.Ct. at 622.
The crux of the majority’s opinion is that the new evidence, the negative identification of Landano and the Basapas/Pasapas identification of Forni, made Landano’s Brady claim, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), substantially different from the claims he had made in the numerous state court proceedings. This analysis is based largely upon the majority’s conclusion that Landano’s claims, and Brady claims in general, are similar to other types of claims, generally ineffective assistance of counsel claims, in which a near identity of factual allegations is required for a claim to be considered exhausted. I do not find the analysis adopted in those cases equally applicable to this or many other Brady type claims.
One key distinction between the ineffective assistance of counsel cases cited by the prosecution and Brady claims, in terms of exhaustion, is the burden placed upon the petitioner by requiring factual identity. In a typical ineffective assistance of counsel claim, the petitioner should know all of the facts which form the basis of his claim immediately following his trial. From the time he hires new counsel and relates the facts of his case to that counsel, he has the ability to bring a claim, presumably in state court, for relief based upon all of the alleged improprieties. Thus, the burden of presenting all of his claims initially and at one time is very low in ineffective assistance of counsel cases.
For a Brady claimant, however, the burden of presenting all of his claims once and forever is much higher. The petitioner in this type of case does not know he has a claim until he discovers the evidence which was withheld. This could come at any stage of the proceedings. Thus, there is a practical barrier to this type of claimant bringing all of his claims, based upon all of his factual allegations, at the same time. This barrier is made even higher if petitioner is forced to go through the entire state and federal court hierarchy each time he finds a new piece of evidence to support his contention.
It must also be remembered that at all times during this procedure, the petitioner has been in prison. Not only was his freedom restricted, but also his ability to pursue evidence of his innocence. It is a testament to Landano’s claim of mistaken identity and innocence that he was able to discover this crucial evidence so long after his trial.1
*680A second distinction between a Brady type claim and a claim for ineffective assistance of counsel is the complexity and range of possibilities the claims present. As the majority notes, there is almost a limitless number of possible errors involving ineffective assistance of counsel, e.g., conflict of interest, poor advice regarding a plea, poor advice regarding whether or not to testify, inadequate preparation time. All of these involve an extensive review of the facts associated with the alleged incident, and the effect this had upon the trial and subsequent guilty verdict. All concern different types of actions by counsel or the court. See e.g., Domainque v. Butterworth, 641 F.2d 8, 13 (1st Cir.1981).
Brady claims, on the other hand, involve only one type of misconduct, a failure to deliver exculpatory evidence to the defendant. Once a state court determines that certain evidence has been withheld in violation of Brady, as the Superior Court of New Jersey did in its denial of Landano’s 1978 motion for a new trial, it is a very small step to conclude, when presented with additional evidence, that other materials were also withheld. The state court has already made a determination that the prosecution violated defendant’s right to have that evidence at trial. Thus, a standard of factual equivalence similar to the one used in sixth amendment exhaustion determinations is neither required nor necessary in a Brady exhaustion analysis such as is involved in this case.
Likewise, the result of the violation is more easily assessed, and is more critical, in the Brady context, than in the ineffective assistance of counsel context. Brady claims, such as those made by Landano, undermine the jury’s ultimate determination of guilt or innocence. The evidence of the negative identification of Landano by Pascuiti and the positive identification of Forni by the mysterious Mr. Basapas demonstrates that at least two witnesses thought, or possibly knew, that Landano did not fire the gun which murdered Officer Snow. To assess this implication takes little analysis or thought. Ineffective assistance of counsel claims involve many more assumptions and conjectures. Sixth amendment claims also do not necessarily undermine the reliability of a jury verdict, but more squarely implicate the process by which that verdict was reached. Thus, the right to effective assistance of counsel cases relied upon by the majority are inap-posite to the Brady claims we now have before us.
Furthermore, violations which so greatly undermine the reliability of a verdict imposing a lifetime confinement deserve more careful and immediate attention than other types of violations. These cases are not only of great concern to the prisoner involved, but to the State and to prison offi-ciafs and staff. A state’s interests are best served by undoing a probable wrong in the quickest possible manner.2 Given the prudential policy of comity which underlies the exhaustion doctrine, such a high degree of factual identity between state and federal court claims should not be required in the most important cases. Here, and in cases like the instant case, the interests of justice *681provide a powerful incentive to weight the concerns of comity in favor of the prisoner’s liberty interests. This is precisely what the district court did.
C.
Given the extraordinary facts in this Brady claim, the majority erects an unrealistic barrier which serves no useful purpose except to burn up valuable judicial time and expenses in both the state and federal judicial systems. Petitioner has made legitimate efforts to gain relief in the state forum. Professor Yackle’s interpretation of the exhaustion principle is most appropriate in this context:
If prisoners make some effort at exhaustion and present at least some arguable case for compliance, and if it appears that the state courts have concluded that no relief is warranted, then surely it is reasonable to consider the perceived merit of the claim before bucking the case back to the state forum in knee-jerk fashion. In cases in which the federal habeas corpus court anticipates that relief will be awarded when the merits are reached, it seems unduly harsh to condemn prisoners to further unconstitutional confinement if, and this is important, a legitimate argument can be made that the exhaustion doctrine has been satisfied.
Yackle, The Exhaustion Doctrine, supra at 421.
Forcing a Brady claimant back to state court each time he finds new evidence that the State has withheld is in effect like allowing the State to remove a man’s eyeglasses and then penalizing him for his impaired vision. As the Court of Appeals for the Eighth Circuit held in a ease most similar to Landano’s, “A due respect for comity does not require that federal proceedings be halted each time the state produces additional evidence potentially favorable to the petitioner.” Austin v. Swenson, 522 F.2d 168, 170 n. 5 (8th Cir.1975). See also United States ex rel. Merritt v. Hicks, 492 F.Supp. 99 (D.N.J.1980) (following Austin v. Swenson).
Sending Landano back to state court would not advance the twin goals of respect for state sovereignty and educating state courts regarding federal constitutional rights. It will encourage state law enforcement officials to disregard the valuable rights protected by the Brady doctrine. It would remove from the State “any incentive to make timely disclosure of material, exculpatory evidence and trivializes the constitutional right recognized in Brady and its progeny.” Monroe v. Blackburn, 476 U.S. 1145, 1150, 106 S.Ct. 2261, 2265, 90 L.Ed.2d 706 (1986) (Marshall, J., dissenting from denial of certiorari).
It is not an undue burden to force a state prisoner to go to state court upon finding the first piece or set of withheld evidence. It is an unfair burden, though, to force that person back to state court, after he has already petitioned for federal habeas corpus, each and every time he finds another piece of evidence. This is particularly true, when his case has been through the state court system twice and he has been imprisoned for thirteen to fourteen years. Thus, I would join the Court of Appeals for the Eighth Circuit in formulating a rule, which would hold Brady claims based upon new evidence exhausted as long as the petitioner had previously made a Brady claim in the state court based upon evidence of similar importance and effect.3 As that court of appeals held, “Absent a willful withhold*682ing of evidence by the defendant in the state proceeding, the requirement of exhaustion does not preclude the District Court from entertaining the issue previously raised in state court and deciding the habeas claim upon the basis of new evidence.” Austin v. Swenson, 522 F.2d at 170.
Under this standard, the district court here properly entertained Landano’s petition. Landano spent nearly eight years litigating his case in the New Jersey court system. All along he claimed he was framed, and that Forni was actually the killer. Each step of the way he uncovered more and more evidence which had been suppressed by the State, the prosecution, or the police. Each time he found new evidence, inculpating Forni and exculpating himself, he presented it to the state court. The state courts, though finding that evidence had been withheld, denied relief.
Finally, he petitioned the federal district court for relief. Forced by the weight of the state court’s findings, that court initially denied him relief, despite its determination that the guilty verdict against Landano was not well grounded. 670 F.Supp. at 583-84. The court believed its result to be so harsh and unjust, yet required by its interpretation of the controlling law, that it virtually implored the appellate court to reverse. Id. at 572. After his original petition ran its course, Landano discovered new evidence, the Basapas identification. He petitioned the district court to reopen the case. Only after the district court granted him complete and open discovery did he uncover the negative identification of Landano. Upon this record and after all these years and expense, it would be harsh to require Landano to once more begin the expensive, lengthy, and weary course in the state judicial system to vindicate himself. His persistent efforts to clear himself have already encountered many high hurdles.
II.
Because I would hold that Landano had exhausted his state remedies as statutorily required, I must, of necessity, reach the other substantive issues raised by the State. I will briefly analyze each of these issues below.
The next procedural issue which the State raises is that it was improper for the district court to reopen the case under Federal Rule of Civil Procedure 60(b). Rule 60(b) provides that:
On motion and upon such terms as are just, the court may relieve a party ... from a final judgment ... for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
Fed.R.Civ.P. 60(b). The State claims that the district court should not have reopened its initial habeas corpus decision, because the new allegations, which are merely newly discovered evidence (60(b)(2)) and attorney misconduct (60(b)(3)), were not made within one year of the original judgment, as required by the rule. The district court recognized this problem, and granted Lan-dano’s motion to reopen upon the residuary clause, Fed.R.Civ.P. 60(b)(6), which is not subject to the one year limitation.
The Rule 60(b)(6) savings clause should be used only in extraordinary circumstances. Moolenaar v. Gov’t of the Virgin Islands, 822 F.2d 1342, 1346 (3d Cir.1987). Generally, this requires that the petitioners make “a more compelling showing of inequity or hardship” than normally would be required to reopen a case under subsections (1) through (5). Twelve John Does v. District of Columbia, 841 F.2d 1133, 1140 (D.C.Cir.1988); see Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir.1975). If such a hardship is ever present, it would seem that it is present in this case.
*683The allegations which Landano makes are not in the context of a civil case, as are most motions under Rule 60(b), but instead in a case where a man has been imprisoned for many years for a crime he might not have committed. The new evidence is not evidence which would merely change the district court’s judgment, but evidence which goes to prove the innocence of a convicted man. The prosecutorial misconduct is not merely a breach of discovery, but it is a constitutional violation. To this extent I agree with the district court which held:
The court cannot conceive of circumstances more “extraordinary” than those presented here, where a prisoner presents evidence that he was convicted without the benefit of exculpatory evidence and that such evidence was not available to him until the time of his motion for relief under Rule 60(b) because of the failure of the State to meet its obligation to turn over such evidence. Landano should not be deprived of the opportunity to present evidence of the suppression of exculpatory materials simply because the State successfully suppressed such evidence until after his habeas corpus application was heard and decided by this court.
126 F.R.D. at 638.
III.
Continuing on a procedural tack, the State contends that the district court committed reversible error by failing to hold an evidentiary hearing prior to making its determination. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The State asserts that because the facts relevant to the two newly discovered documents were in dispute, and no court had ever made a determination of the nature of the documents and whether they were actually suppressed, a hearing was not only legally but logically necessary. New Jersey would urge us, assuming that we reach this question, to remand to the district court for an evidentiary hearing.
Townsend holds that “[w]here the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of trial or in a collateral proceeding.” Id. at 312, 83 S.Ct. at 757. The right to a fair and full hearing of facts is a due process right of the habe-as petitioner and not the state. Though the state certainly has an interest in protecting the judgments rendered by its criminal courts, this interest is not as high as a person’s constitutional interest in liberty. If the state does not receive a hearing and loses, it merely must retry the case. This is a burden, but not nearly as compelling as the burden to an unsuccessful habeas petitioner, who is returned, virtually without recourse, to prison.
In cases where a due process right is not blatantly violated, Townsend leaves it to the discretion of the trial court to determine if an evidentiary hearing is necessary. Id. at 318-19, 83 S.Ct. at 759-60. Also, there is no requirement of a hearing if such a hearing would be frivolous. Id. at 317, 83 S.Ct. at 759. In this case, the district court implicitly ruled that an evidentiary hearing would be largely frivolous, because the State failed to make any documented allegations to contradict the claims made by Landano. This, to me, displayed a proper exercise of discretion. Furthermore, the State never specifically requested a hearing of the district court, nor did it protest to the court because of the failure to hold such hearing.
Landano presented certifications from himself and appellate counsel that the State had never disclosed the documents in question. Landano himself is the only person who has been continuously involved in the case from beginning to end, and asserts that he is familiar with all of the evidence in the case. Appellate counsel reports that he did an extensive search of his files, Landano’s files, and trial counsel’s files and did not find the documents. Landano’s trial counsel died sometime after trial, and thus is unable to confirm or deny the allegations made by Landano and appellate counsel.
*684The State’s response was minimal. No member of the original prosecution team, nor of the police, could recall the two documents and thus were unable to recall if the documents were ever forwarded to Landano. Given this general lack of memory on the part of the State’s potential witnesses, and the large amount of time which has passed, in all likelihood an evi-dentiary hearing conducted by the district court, or by a state court would have been unproductive. I therefore would hold that the trial court did not abuse its discretion by failing to hold an evidentiary hearing.
IV.
The State also appeals on substantive grounds, arguing that Landano is not due relief under Brady. It asserts that the evidence was not suppressed, and that even assuming that it was, the evidence is not immaterial. With respect to the negative I.D. of Landano, the State contends that Pascuiti testified at trial that he thought the gunman had curly hair, and he even admitted on cross-examination that he picked Forni as resembling the gunman. It similarly argues that Basapas is really Pas-cuiti, and thus again, the jury was aware that Pascuiti had tentatively identified For-ni as the gunman. These are questions of fact, and we review them only to determine that they are not clearly erroneous.
A.
In Brady, the Supreme Court held that a defendant’s due process right to a fair trial is violated when the prosecution, actually or constructively, withholds material, exculpatory evidence. 373 U.S. at 83, 83 S.Ct. at 1194. The prosecution is responsible for knowing what evidence appears in its files, regardless of whether or not it has actual knowledge of the evidence. United States v. Agurs, 427 U.S. 97-110, 96 S.Ct. 2392-2401, 49 L.Ed.2d 342 (1976). It is irrebut-ably presumed that the prosecution’s file is coextensive with the police files. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Smith v. State of Florida, 410 F.2d 1349, 1351 (5th Cir.1969).
The two pieces of evidence in this case, the police report reference to Basapas, and the negative I.D. of Landano were part of the police department file and were exculpatory. Thus, the State had an obligation to disclose them to Landano. The district court ruled that they were suppressed, and this finding is not clearly erroneous.
Landano and appellate counsel certify that these two documents were not disclosed. The State is unable to rebut this persuasively. It fails to present any direct evidence substantiating its claim. Essentially, its only argument is that Landano’s trial counsel must have had access to the evidence, because he questioned Pascuiti at trial concerning a photo identification of Forni.
This allegation is rebutted, though, by Landano’s own description of trial counsel’s strategy. Landano certified that “At trial, Mr. Flynn [trial counsel] decided, as he put it, to go on a ‘fishing expedition’ or to ‘fish out’ whether or not various witnesses ever identified Victor Forni. Mr. Flynn did this with Jonathan Roth, Ann Marie DeMichelli and Joseph Pascuiti to name some witnesses Mr. Flynn tried this approach on.” Given this certification, and that Flynn has died and thus is unable to definitively answer the question, it cannot be said that it was clearly erroneous for the district court to rule that the evidence had been suppressed.
B.
It is not enough merely that exculpatory evidence be suppressed; it must also be material in order for the evidence to serve as grounds for upsetting the jury verdict. Materiality requires that there be a reasonable probability that if the evidence had been disclosed the result of the proceedings would have been different. See United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). In judging the materiality of evidence, the court must consider the totality of the evidence and determine the relative “strength or fragility of the state’s case against [the defendant] as a whole.” Carter v. Raffer*685ty, 826 F.2d 1299, 1308 (3d Cir.1987), cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988).
In this case, following the first habeas hearing, and even before that, the State’s case against Landano was extremely thin. Initially, the jury that ultimately convicted Landano, was nearly hung, and was only able to reach a verdict after almost two days of deliberation and a “forceful” though not unduly coercive, Allen charge, see Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1986). 670 F.Supp. at 589-90. Before reaching this verdict, the jury also requested and had reread to it the testimony of Pascuiti. Thus, it is clear that the jury considered this testimony highly significant.
Second, the case was factually very weak, based almost exclusively upon equivocal eyewitness identifications. The only physical evidence implicating Landano, hair samples and a somewhat distinctive hat, is not persuasive unless tied to conclusive identifications. The only participant identification, Roller’s, is suspect because he had in interest in protecting Forni and in aiding the police as a part of his plea agreement. Id. at 584-86. Pure witness identification cases are inherently weak. As one commentator explains, “Many judges have concluded that at best most eyewitnesses can retain the memory of the obvious two eyes, one nose and one mouth. There is always cause for concern when guilt or innocence turns solely on identification testimony and nothing else connects the defendant with the crime.” N. Sobel, Eyewitness Identification, Legal and Practical Problems (1972).
The case has been made weaker and weaker by the subsequent proceedings. Portas, the only witness to definitively identify Landano, has attempted to recant his trial testimony, and has reported that he initially identified someone other than Landano as the driver of the getaway car. Landano v. Rafferty, 670 F.Supp. at 576-78. Roth, the victim, who related a version of the incident which was completely different from any other version, identified Lan-dano, but it was subsequently discovered that he might have done so to prevent a police investigation of his own illegal operations. Id. at 586-88. The state court also heard testimony from two of Roller’s prison cell mates, which it found not to be credible, which supports Landano’s claim that Roller framed him. All of this evidence, though, was not enough because of the initial strength of Pascuiti’s testimony combined with Portas’.4 The newly discovered evidence, however, demonstrates that the State’s case, erected upon a house of cards, has little, if any, credible foundation to it.
The Basapas identification is significant regardless of who is or was Basapas. If Basapas was Pascuiti, a proposition which given the difference in spelling seems to stretch the bounds of logic somewhere past its breakingpoint, it shows that Pascuiti identified Forni as the killer. Though Lan-dano’s trial counsel managed to elicit some admission of this from Pascuiti, it was effectively rebutted by the prosecution, which pointed out that Pascuiti had not been able to positively identify anyone. Had the new evidence been available to defense trial counsel, he could have made this point more forcefully and pressed Pas-cuiti on the identification of Forni. Given the care with which the jury considered Pascuiti’s testimony, its request that his testimony be read to them, and the trouble they had in reaching a verdict, a stronger statement by Pascuiti concerning his earlier identification of Forni would have had a reasonable probability of changing the outcome.
If Basapas is not Pascuiti, the jury would have been presented with a direct witness *686identification of Forni, and not Landano. This would have rebutted the Portas identification, particularly given that Portas was unable to identify Roller as the passenger of the getaway car. If this supplemental evidence had been introduced at trial, it is more than probable, and likely, that the jury would have returned a not guilty verdict.
The negative I.D. of Landano is also material because it proves that the only man who saw the actual murder, Pascuiti, did not think that Landano was the killer. This is a much stronger statement than Pascuiti’s testimony that the gunman had curly hair, as opposed to Landano who has straight hair. Again, the care with which the jury considered Pascuiti’s testimony, and the difficulty they had in reaching a verdict, indicates that the added degree of strength which a negative identification by Pascuiti would have added to Landano’s case creates a reasonable probability that Landano would have been found not guilty.
Though both pieces of evidence, in combination with past determinations, would be independent grounds for granting the petition, they are even stronger when viewed together. The evidence disclosed up until this time has been amazingly consistent in supporting Landano’s claim that he was wrongly convicted. It tends to substantiate Landano’s original claim that evidence of identifications which would have detracted from the State’s case against Landano was destroyed or withheld. Also, it supports the argument that Forni, and not Landano, was the killer. Accordingly, I would affirm in all respects the district court’s grant of the conditional writ of habeas corpus.
V.
The State has filed a petition for mandamus to compel the return of the files in which it claims a work product privilege. It also has a pending motion for the return of the files. The mandamus proceedings have been consolidated with the State’s appeal from the district court’s judgment in the habeas corpus petition and briefed and argued together. We now turn to the mandamus petition.
I, like the majority, would return all of the files at this time but for a different reason. I would hold that there is no longer an urgent need to protect the files and that the temporary restraining order should be dissolved. This would make the mandamus petition moot.
The continuation of a temporary restraining order beyond the period of statutory authorization is generally considered to be the equivalent of the issuance of a preliminary injunction. Sampson v. Murray, 415 U.S. 61, 86, 94 S.Ct. 937, 951, 39 L.Ed.2d 166 (1974). To justify such extraordinary relief a party must show that (1) s/he will most likely prevail on the merits appeal, (2) s/he will suffer irreparable harm if the relief is denied, (3) other parties will not be substantially harmed by the relief, and (4) the public interest will be served. See In re Arthur Treacher’s Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir.1982). The point of reference for conducting this analysis is the period after the district court entered its order denying the release of the files, for it is here that the injunction was extended indefinitely until this court entered its judgment.
In this case, Landano has not demonstrated irreparable harm, and thus the restraining order should be dissolved. Lan-dano has already had an opportunity to view all of the State’s records, with the exception of those in which it claims and was granted a work product privilege. To this extent, he has been privy to all of the information in those files, and has had an opportunity to discover any additional exculpatory evidence. Though Landano claims that the files should be sequestered to prevent any further destruction, such destruction would not cause him any harm at a retrial. He has already seen all of the evidence and can make use of it. He will also be given full and adequate discovery pursuant to any retrial. If the State attempts to hide anything from him in this discovery, he will be on notice of any impropriety, and will be able to adequately protect his interests at that time. Thus, *687the return of the files will not cause Landa-no irreparable harm.
Additionally, the public interest, and the prosecution’s interest will be adversely affected by the continuation of the sequestration of the files. The State would need the files to reevaluate its case and determine if Landano should be retried. The State’s ability to retry Landano would be severely limited if its files were not returned, particularly in light of the ninety day period in which the district court ordered it to commence any proceedings against Landano. Delaying the return of the files injures the public’s interest in the efficient and accurate operation of the criminal justice system. The public’s interest was protected by the initial entry of the restraining order, because this allowed Landano the opportunity to prove that his trial had been unfair, and had reached an incorrect result. Now, though, assuming the district court were affirmed, that interest shifts to locating and trying Officer Snow’s murderer, whether it be Landano, Forni, or someone else. Returning the State’s files will facilitate this process; continuing the restraining order will frustrate it.
VI.
In conclusion, under the facts established here there is a grave threat to the fundamental right to personal liberty of an innocent man unless the conditional grant of the writ of habeas corpus is allowed. Applying the strictures of the exhaustion requirement and requiring repetitive, costly and time-consuming procedures in the state judicial system on substantially the same issue heard by the district court does not serve the cause of comity. To adhere so strictly to a prudential consideration of comity in the face of such manifest injustice detracts from the judiciary’s role as the guarantors of justice and the Great Writ’s ability to stand as the bulwark of personal liberties. I cannot join in such a result.
The judgment of the district court in granting the conditional writ of habeas corpus should be affirmed. The State’s motion for the return of the files should be granted and the petition for writ of mandamus denied as moot. •
. Landano has displayed remarkable steadfastness given the circumstances. Not only has he *680vigorously pursued vindication, but he has also made a positive contribution to the prison and society in general. During his years of incarceration in the Rahway State Penitentiary, he was the founder and president of "The Lifers,” the group of prisoners sentenced to life imprisonment which ran the nationally recognized juvenile rehabilitation program, "Scared Straight.”
. See Remington Changes in the Availability of Habeas Corpus: Its Significance for State Prisoners and State Correctional Programs, 85 Mich.L. Rev. 570, 580-90 (1986). Remington argues that:
A post conviction process which is responsive to those who have an arguable claim of innocence (not guilty or at least not guilty of as serious an offense as that of which they were convicted) is desirable for several reasons: (1) imprisoning people who ought not be confined for so long is economically wasteful; (2) a correctional program is unfairly burdened if it is asked to treat constructively a person who has an arguable claim of innocence; and (3) a most basic right of an individual is not to be punished for a crime he or she did not commit. It would seem to follow from a state correctional program point of view the greatest opportunity for post conviction review, both state and federal, should be for those who can make an arguably valid showing that the guilt-finding process failed in their case.
*681Id. at 582-83.
. The petitioner must have based his state court Brady claim upon more than mere allegations; he must have been able to substantiate it with some evidence. See Wise v. Warden, 839 F.2d 1030 (4th Cir.1988); Sampson v. Love, 782 F.2d 53 (6th Cir.), cert. denied, 479 U.S. 844, 107 S.Ct. 159, 93 L.Ed.2d 98 (1986); United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 94 (3d Cir.1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978).
The new evidence should have a similar impact upon the case. For instance it would not constitute exhaustion if petitioner raised a Brady claim based upon the withholding of evidence relevant to the voluntariness of his confession, and later presented a claim based upon withheld evidence regarding identifications. Here, Landano’s new evidence had two effects, undermining identifications of Landano and implicating Forni. The withheld evidence relating to Portas, Roller, and Roth, all of which was presented to state tribunals, had similar effects.
. The state court found that Portas’ recantation was not credible, and thus refused to discredit his trial testimony. On the other hand, the district court, in the original habeas proceedings, found Portas’ recantation to be credible, but was compelled to abide by the state court findings, because it was unable to find that the state court's credibility determination, a question of fact, was clearly erroneous. Landano v. Rafferty, 670 F.Supp. at 580-83. It is undisputed, though, that Portas was unable to identify Roller as the passenger in the getaway car. Thus, his identification is weak, even giving no credit to his later recantation.