dissenting:
I respectfully dissent from the view that habeas corpus was properly granted overturning the state-court conviction of petitioner Hilden Mendez. The issue at trial was whether Mendez was the man who shot and killed Albert Hayles and shot and wounded Johnny Rodriguez. In my view, the undisclosed evidence went solely to the question of whether another person also wished to have Rodriguez killed. Given, inter alia, (a) eyewitness identifications of Mendez as the shooter, (b) a prior altercation involving Mendez and Rodriguez, and (c) the testimony of Mendez’s friend that, two days after the shooting, Mendez said he had recently shot someone with whom he had had an altercation, I am not persuaded that a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), resulted from the prosecution’s failure to disclose to Mendez that another person had hired someone— of unknown identity — to kill Rodriguez.
The evidence included the following. Shortly after 1 a.m. on August 3, 1990, Rodriguez, his cousin-in-law David Pacheco, and Nelson Suarez were talking on a sidewalk in the Bronx, New York, waiting for Gustavo Guerra, a mechanic who repaired cars on the street, to finish repairing Rodriguez’s car. Also present was Hayles, who was waiting for his own car to be repaired. A man approached and said something innocuous; he then walked a few steps away, turned around, pulled a machine gun from his waist, and, looking at Rodriguez, began to shoot.
The men promptly ran for cover. Pacheco and Guerra escaped uninjured. Suarez was shot once in the leg and survived. Hayles was shot twice and died. Rodriguez was shot in the arms and legs a total of 18 times but survived.
When the police arrived at the scene, they asked Rodriguez whether he had seen the shooter. Rodriguez testified that he responded that he had seen the shooter and that the shooter, whom he had previously seen in the neighborhood, was “Tony.” No one else at the scene told the police that the shooter was known to them or looked familiar.
On August 6, the police received information that the person or persons they were looking for in connection with the shooting were in a jeep at a certain location. The police went there and found Mendez and Viterbo Abreu in a jeep. They arrested Mendez on murder charges; he admitted to using the name “Tony.” On the following day, Mendez was placed in a lineup. Suarez was the only witness who viewed the lineup; he identified Mendez as the August 3 shooter.
Both Rodriguez and Suarez also identified Mendez as the shooter at trial. Shortly after the shooting, Rodriguez and Suarez had described the shooter as shorter and slighter (5'2" to 5'9" tall, 130 to 160 pounds) than Mendez’s actual size (6'2" tall, 190 pounds); and they stated at trial that Mendez had looked somewhat slimmer at the time of the shooting than he did at trial. But both witnesses expressed certainty that Mendez was the shooter. Suarez, for example, testified that although he recalled the shooter as being shorter and thinner, the face was the same, it was Mendez’s face he recognized, *418and he had no doubt that Mendez was the shooter.
Rodriguez testified that he recognized Mendez at the August 3 shooting from an incident that had occurred some two-to-four weeks earlier. In that earlier encounter, Rodriguez and a companion had been in Rodriguez’s car when the companion got into a violent argument with Mendez. The companion left Rodriguez’s car and fired shots at Mendez. It was on that day that Rodriguez learned that Mendez was called “Tony.”
Abreu, who was with Mendez when the police found him on August 6 and was arrested on an unrelated weapons charge, also testified for the prosecution. Abreu had known Mendez for five years and had always known him by the name “Tony.” Abreu testified that on August 5, Mendez was driving a Toyota Prelude automobile with two bullet holes in it, and that Mendez said he had been shot at and had retaliated by shooting two or three people he held responsible for shooting at him. These statements by Mendez provided corroboration both for Rodriguez’s account of his prior encounter with Mendez and for Rodriguez’s recognition of Mendez as the August 3 shooter.
The evidence that was not disclosed by the prosecution, and that has occasioned the granting of habeas overturning Mendez’s conviction, was that one Oswaldo D. Rodriguez (“Oswaldo”) (apparently not related to Johnny Rodriguez) had commissioned the killing of Johnny Rodriguez as revenge for a theft of money belonging to Oswaldo. In the context of the present case, I have difficulty seeing that this evidence was material, i.e., that if it had been disclosed there was a reasonable probability that the outcome of the trial would have been different.
Many persons may have had motives to kill Johnny Rodriguez, but there was only one shooter. Johnny Rodriguez, at the scene of the shooting, identified Mendez by nickname; Suarez identified Mendez in a lineup four days after the shooting; and both Rodriguez and Suarez identified Mendez at trial. The fact that another person too had a motive and may have commissioned a killing does not affect the positive identification testimony.
To be sure, not all of those present at the shooting identified Mendez as the shooter. Guerra and Pacheco testified that the shooter was not Mendez; but there was ample basis for the jury to discredit that testimony as having been recently fabricated. Guerra, for example, testified at trial that he had gotten a good look at the shooter; but he admitted that he did not see the shooter at first because his head was under the hood of Rodriguez’s car when the shooter approached, and that when the shooting started he ran. And although Guerra testified that he looked at the shooter from between cars, he had told a police officer that he was not present at the August 3 shooting and had seen nothing. Pacheco too testified at trial that he had gotten a good look at the shooter; and he testified that he recognized the shooter as someone he knew as “Ray.” But Pacheco, when questioned by the police, had not said he recognized the shooter.
The evidence that Oswaldo had commissioned a killing did nothing to support the testimony of these two witnesses. There was no indication that the man whom Os-waldo had hired was named Ray; no name was provided for the hit man. Indeed, the Oswaldo evidence may have provided another indicium that the shooter was Mendez: Abreu testified that Mendez drove a Toyota, and the person who informed the police about Oswaldo stated that Oswaldo’s hit man had driven a Toyota.
In sum, there was abundant evidence that Mendez was the shooter, and the un*419disclosed evidence did not suggest an alternative culprit but only an additional motive. The fact that another person had a motive to kill Rodriguez could not undermine the evidence that Mendez too had such a motive, and it had no bearing on the eyewitness identifications of Mendez as the shooter. The state court, after holding a lengthy hearing into Mendez’s Brady challenge, concluded that the undisclosed information neither was favorable to Mendez in any material way nor tended to exculpate him. In my view, that conclusion was neither “contrary to” nor “involved an unreasonable application of’ Brady v. Maryland and its progeny, 28 U.S.C. § 2254, for-even if the information had been disclosed, I see no reasonable probability that the outcome of the trial would have been different. I would thus reverse the granting of the writ.