Finley v. Cockrell ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 02-40980
__________________________
JAY MAYNARD FINLEY,
Petitioner-Appellee,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellant.
___________________________________________________
On Appeal from the United States District Court
For the Eastern District of Texas
(Civil Action No. 99-CV-98)
___________________________________________________
October 1, 2002
Before GARWOOD and CLEMENT, Circuit Judges, and RESTANI, Judge.*
PER CURIAM:**
Jay Maynard Finley, a Gladewater city councilman, was
convicted of aggravated kidnapping in May 1995 and sentenced to ten
years of confinement, placed on probation for five years.
Following revocation of his probation in October 1995, Finley filed
*
Judge of the U.S. Court of International Trade, sitting by
designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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a notice of appeal of the revocation and a motion for a new trial.
Both were denied, as was his state application for habeas relief.
Finley then petitioned for federal relief pursuant to 28 U.S.C. §
2254, asserting that the prosecution suppressed exculpatory
evidence relevant to his necessity defense in violation of Brady v.
Maryland, 373 U.S. 83 (1963). A panel of this Court affirmed the
district court’s judgment that Finley procedurally defaulted the
Brady claim, but granted relief from the bar on the grounds that
its application would result in a miscarriage of justice. The
panel remanded for “consideration of Finley’s Brady claim on the
merits.” See Finley v. Johnson, 243 F.3d 215, 222 (5th Cir. 2001).
On remand, the district court adopted the magistrate’s report and
recommendation and granted a writ of habeas corpus.
Appellant contests the grant of habeas, claiming that the
district court erred in finding that the prosecution suppressed the
relevant evidence and further that the district court did not fully
consider the Brady claim on the merits. For the reasons given
below, we affirm the district court.
Facts
On July 10, 1994, Louis Towery called Finley to ask for a ride
to James McKinley’s. Finley knew that Towery had been sexually
molesting his daughter Erika Towery for years and that the police
had not taken action when Erika and her mother Martha reported the
abuse. Before picking up Towery, Finley called the chief of police
2
and asked if he knew of Erika’s report. When the chief told Finley
that he would check into it on Monday, Finley replied that he
“didn’t have time to wait until then” and that “something [was]
going to have to be done with it.”
While Finley and Towery were driving to McKinley’s, Finley
brought up the alleged molestations. When Finley told Towery that
Erika had talked to the police, Towery became upset and made
comments such as: “she had run her f***ing head” and he was going
to “get them all” and “kill the bitch.” In McKinley’s house,
Towery confessed to molesting Erika when Finley put a gun to
Towery’s side.
McKinley and Finley bound Towery with duct tape and took him
to the police station in a town neighboring Gladewater. However,
once at the station, they decided not to go in out of concern that
Towery was related to a police sergeant named Ronald Towery.
Instead, they left Towery tied to a mailbox near the Union Grove
Cemetery and called the Gladewater Police Department to report
Towery’s location.
At trial, Finley raised the defense of necessity,1 arguing
that his actions were necessary to protect Towery’s wife and
daughter from immediate harm. Finley testified that Towery always
carried a gun, had taken some pills on the way to McKinley’s house,
1
The necessity defense states that conduct is justified if “the
actor reasonably believes the conduct is immediately necessary to
avoid imminent harm.” Tex. Penal Code § 9.22(1).
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and threatened to kill Martha and Erika. The jury did not find
enough supporting evidence for the necessity defense; however they
ruled without knowledge of a protective order granted to Martha two
days after the incident that led to Finley’s prosecution.
Martha’s application for a protective order against her
husband stated that she “reasonably believe[d] that family violence
ha[d] been committed by Louis Towery and that there [wa]s clear and
present danger of family violence that w[ould] cause the applicant
and others named immediate and irreparable injury, loss, and
damage.” The supporting affidavit, which was signed the day after
the incident between Towery and Finley, stated that Erika was
“scared to death” of her father and feared that he would continue
to molest her if allowed to remain in the house. The prosecution
knew of the order; in fact, the district attorney who prosecuted
Finley obtained the protective order. Defense counsel was unaware
of the protective order until after the time for seeking a new
trial had passed; it was not in the state’s files produced to
defense counsel and, in fact, had been placed under seal.
Analysis
Brady v. Maryland, 373 U.S. 83 (1963), “requires that the
prosecution disclose to the defense both exculpatory evidence and
evidence that would be useful for impeachment. To prevail on [a]
Brady claim, [petitioner] must show that (1) the prosecution
suppressed evidence, (2) the evidence was favorable to the defense,
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and (3) the evidence was material.” Lawrence v. Lensing, 42 F.3d
255, 257 (5th Cir. 1994) (internal citations omitted); see
Strickler v. Greene, 527 U.S. 263, 280 (1999) (“The evidence at
issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.”). We review findings of fact for
clear error and issues of law de novo. Dyer v. Johnson, 108 F.3d
607, 609 (5th Cir. 1997).
Suppression of the Protective Order
“A Brady violation does not arise if the defendant, using
reasonable diligence, could have obtained the information.”
Williams v. Scott, 35 F.3d 159, 163 (5th Cir. 1994) (citing United
States v. Ramirez, 810 F.2d 1338, 1343 (5th Cir.)). Reasonable
diligence would not have surfaced the protective order. The order
was under seal. The prosecutor admitted that he did not give
Finley a copy of the protective order. He further conceded that
the application for the protective order was not in the file
produced to Finley.
Appellant argues that since Finley knew that Towery had been
convicted of sexual assault and had access to Martha and Erika
Towery, defense counsel should have known of the protective order.
However, defense counsel had no reason to ask about an order of
which he had no knowledge; counsel could only have learned of the
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protective order if Martha or Erika had mentioned it. As the
magistrate court wrote in its report and recommendation adopted by
the district court, “[t]he State’s constitutional duty to disclose
exculpatory evidence is not satisfied by the fact that a non-
attorney witness might happen to volunteer evidence about which the
defense knows nothing.” The district court did not err in finding
that the prosecution suppressed the application for the protective
order.
The District Court’s Consideration of the Merits
The second and third components of a Brady claim require that
the suppressed evidence be material and favorable to the defense.
Drew v. Collins, 964 F.2d 411, 419 (5th Cir.1992). Appellant
claims that the district court relied solely on the “law of the
case” doctrine in ruling that the protective order was favorable
and material and did not put the independent analysis into its
decision that this Court’s order to consider “Finley’s Brady claim
on the merits” required. The law of the case doctrine
“precludes reexamination of issues of law or fact decided on
appeal . . . [and] applies only to issues that were actually
decided . . . [T]he issues need not have been explicitly
decided; the doctrine also applies to those issues decided by
necessary implication. In other words, even when issues have
not been expressly addressed in a prior decision, if those
matters were fully briefed to the appellate court and . . .
necessary predicates to the [court’s] ability to address the
issue or issues specifically discussed, [those issues] are
deemed to have been decided tacitly or implicitly, and their
disposition is law of the case.” Alpha/Omega Ins. Services,
Inc. v. Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th
Cir. 2001) (internal citations and quotes omitted).
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Since, as explained below, we find that the district court put
sufficient independent analysis into its ruling on the
favorableness and materiality of the evidence, we do not have to
decide whether or not the district court could rely on the law of
the case doctrine. However, it is worth noting that in order to
grant relief from the procedural bar on habeas this Court had to
find that a miscarriage of justice would result. As the panel
stated, “[t]he fundamental miscarriage of justice exception to the
rule that state procedural default bars federal habeas review is
limited to cases where the petitioner can make a persuasive showing
that he is actually innocent of the charges against him.
Essentially, the petitioner must show that, as a factual matter, he
did not commit the crime for which he was convicted.” Finley, 243
F.3d at 220 (internal citations omitted). “To establish the
requisite probability that he was actually innocent, the petitioner
must support his allegations with new, reliable evidence that was
not presented at trial and show that it was more likely than not
that no reasonable juror would have convicted him in the light of
the new evidence.” Fairman v. Anderson, 188 F.3d 635, 644 (5th
Cir. 1999) (internal quote omitted). Material evidence in the
Brady context is evidence that raises "a reasonable probability
that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different." United States v.
Bagley, 473 U.S. 667, 680-82 (1985). Putting the Brady and
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miscarriage of justice standards side-by-side reveals that to find
a miscarriage of justice, this Court implicitly found that the
evidence that had surfaced after trial was material and favorable
to the defendant.
However, we do not have to find that the second and third
prongs of Brady were implied in our ruling that relief from the
procedural bar to habeas be granted. We remanded “for
consideration of Finley’s Brady claim on the merits” and the
district court adequately considered that claim. The district
court confronted appellant’s law of the case doctrine arguments in
its memorandum adopting the magistrate’s report and recommendation
and stated that it had “conducted a careful de novo review of the
pleadings in this case, including the original petition, the answer
of the Respondent, the Petitioner’s response thereto, the testimony
at the evidentiary hearing, the Report of the Magistrate Judge, the
Respondent’s objections thereto, and all records, pleadings, and
filings in the case.” Reading the opinion as a whole and in the
context of the proceedings held, we find that the district court
conducted sufficient independent analysis in finding a Brady
violation. None of the evidence reviewed by the lower court gave
it reason to question this Court’s statements that “Finley has
pointed to new evidence which is both undisputed and highly
probative of his affirmative defense of necessity. [And] Finley’s
new evidence confirms his claim of necessity and it is not just
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possible but more likely than not that no reasonable juror would
have convicted him.” Finley, 243 F.3d at 221. The district court
did not err in finding that evidence of the protective order was
material and favorable to the defense.
Conclusion
The district court’s grant of habeas is affirmed.
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