Walker v. Kelly

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-22
DARICK DEMORRIS WALKER,
Petitioner - Appellant,
versus
LORETTA K. KELLY, Warden, Sussex I State
Prison,
Respondent - Appellee.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 05-6942)
Argued: May 22, 2006 Decided: August 24, 2006
Before WILLIAMS and GREGORY, Circuit Judges, and Henry F. FLOYD,
United States District Judge for the District of South Carolina,
sitting by designation.
Vacated and remanded by unpublished opinion. Judge Floyd wrote the
majority opinion, in which Judge Gregory concurred. Judge Gregory
wrote a separate concurring opinion. Judge Williams wrote a
dissenting opinion.
ARGUED: Danielle Spinelli, WILMER, CUTLER, PICKERING, HALE & DORR,
L.L.P., Washington, D.C., for Appellant. Katherine P. Baldwin,
Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee. ON BRIEF: David W. Ogden, Alison
J. Nathan, D. Hien Tran, WILMER, CUTLER, PICKERING, HALE & DORR,
L.L.P., Washington, D.C., for Appellant. Robert F. McDonnell,
Attorney General of Virginia, Jerry P. Slonaker, Senior Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
FLOYD, District Judge:
Darick D. Walker brings this appeal asserting that the
district court erred by failing to find cause and prejudice
sufficient to overcome the procedural default of his claim under
Brady v. Maryland, 373 U.S. 83 (1963), as it relates to the
evidence withheld by the Commonwealth regarding prosecution witness
Bianca Taylor (Bianca Brady claim).
We agree with Walker and, for the reasons set forth below,
hold that Walker has established the cause and prejudice necessary
to overcome the procedural default of his Brady claim.
Accordingly, we vacate the judgment of the district court and
remand for an evidentiary hearing on the merits of his Bianca Brady
claim.
I.
Catherine Taylor and her children, Bianca, Monique, and
Sidney, lived in University Terrace Apartments with Stanley Beale,
the children’s father. (J.A. at 35.) On the evening of November
22, 1996, Stanley Beale was in the kitchen of the Beale apartment
when Catherine Taylor, who was in the bedroom with the three
children, heard a “boom like noise” in the living room. (J.A. at
36.) According to the testimony at trial, Catherine, Bianca, and
Monique left the bedroom and entered the living room. (J.A. at
37.) Catherine and Bianca testified at trial that they saw a man
3
kick in the front door and enter the apartment with a gun, (J.A. at
26, 37.), and that Beale, who was standing in the doorway of the
kitchen, answered the intruder by stating, “I don’t know you.”
(J.A. at 25, 37.)
On the night of the incident, Catherine provided police with
a detailed description of the height, build, and clothing of the
intruder. (J.A. at 489, 844.) Nevertheless, she was unable to
identify Walker as the intruder in a photo lineup. (J.A. at 40.)
Bianca, on the other hand, attested at trial that she saw Walker
shoot her father and recognized him as someone she knew named
“Todd.” (J.A. at 27-29.) Bianca identified Walker during a photo
lineup and again at trial as “Todd.” (J.A. at 29-30.)
Tameria Patterson, a fourteen-year-old girl at the time of the
trial, was visiting the home of Karen Randolph in University
Terrace Apartments (Randolph apartment) on the night of the murder.
(J.A. at 50-51.) At trial, Tameria stated that she saw a man she
knew as “Todd” enter the Randolph apartment and say “I shot him.”
(J.A. at 52.) During a photo lineup and later at trial, Tameria
identified Walker as the person who entered the Randolph apartment.
Id.On August 31, 1998, through September 1, 1998, Walker was
tried and convicted by a jury in the Circuit Court for the City of
Richmond on charges of capital murder for the deaths of Stanley
Beale and Clarence Threat, on two counts of burglary, and on four
4
counts of using a firearm in the commission of a murder and
burglary. (J.A. at 182-84.) Walker received a sentence of life
imprisonment for each of the two burglary convictions and a total
of eighteen years imprisonment for the firearm convictions. (J.A.
at 333C.) In a separate sentencing proceeding, the jury sentenced
Walker to death for his capital murder convictions. (J.A. at
333C.)
On June 11, 1999, the Virginia Supreme Court affirmed Walker’s
conviction and death sentence. Walker v. Commonwealth, 515 S.E.2d
565, 577 (Va. 1999). The United States Supreme Court subsequently
denied Walker’s petition for writ of certiorari. Walker v.
Virginia, 528 U.S. 1125 (2000).
The Supreme Court of Virginia dismissed Walker’s habeas corpus
petition on March 23, 2001. Walker v. True, No. 615, slip op. at
12 (Va. Mar. 23, 2001); (J.A. at 359.) The state trial court then
set Walker’s execution date for August 7, 2001. The federal
district court stayed Walker’s execution on July 31, 2001, and
granted his motion for appointment of counsel.
On February 1, 2002, Walker filed his federal petition for a
writ of habeas corpus in accordance with 28 U.S.C. § 2254, along
with a discovery motion seeking the police records related to the
Beale murder. (J.A. at 388.) On July 26, 2002, the district court
dismissed Walker’s petition and denied all outstanding motions.
Walker v. True, No. 01-1196-A, slip op. at 55 (E.D. Va. July 26,
5
2002); (J.A. at 942.) The district court denied Walker’s motion
for reconsideration on September 4, 2002, Walker v. True, No. 01-
1196-A, slip op. at 1 (E.D. Va. Sept. 4, 2002), and Walker noted
his appeal on October 4, 2002. (J.A. at 1001.)
In an unpublished opinion dated May 6, 2003, this court
granted Walker’s Certificate of Appealability on, inter alia, his
claim that the Commonwealth failed to disclose certain evidence in
violation of Brady, 373 U.S. 83. Walker v. True, 67 Fed. App’x.
758, 762 (4th Cir. 2003). The panel then held that Walker failed
to establish sufficient cause to undermine the state court’s
finding that he knew of the factual basis underlying his Bianca
Brady claim at the time of trial and on direct appeal. Id. at 767.
Walker subsequently petitioned the United States Supreme Court
for a writ of certiorari on several bases, including an argument
that this court erroneously decided his Brady claim. The Supreme
Court granted certiorari, vacated, and remanded for reconsideration
of his ineffective assistance of counsel claim, but not for
reconsideration of the Brady claim. Walker v. True, 540 U.S. 1013(2003). The district court and this court reconsidered the
ineffective assistance claim and again dismissed it. Walker v.
True, 401 F.3d 574 (4th Cir. 2005).
Walker once more petitioned the United States Supreme Court
for certiorari, rearguing, inter alia, that this court erred in
deciding his Brady claim in 2003. The Supreme Court granted
6
certiorari and remanded the case to this court for reconsideration
of the Brady claim in light of the Court’s intervening decision in
Banks v. Dretke, 540 U.S. 668 (2004).
II.
As a general rule, we are
precluded from reviewing the merits of a claim that was
procedurally defaulted under an “independent and
adequate” state procedural rule, “unless the [petitioner]
can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice.”
Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (citation
omitted). Viewing the facts of the case at bar through the lens of
Banks, we will now consider whether Walker has shown the requisite
cause and prejudice to overcome the procedural default of his
Brady claim.
III.
A.
We first consider the cause factor as illustrated by the facts
in Banks. In Banks, the petitioner was convicted of capital murder
and sentenced to death. 540 U.S. at 674. Prior to trial, the
State advised Banks’ attorney that it would provide all discovery
to which Banks was entitled. Id. Despite this assertion, however,
7
the State withheld evidence that would have allowed Banks to
discredit two essential prosecution witnesses. Id. at 675.
Through the course of discovery and an evidentiary hearing
authorized by the district court in Banks’ federal habeas
proceeding, the evidence revealed that one of the State’s key
witnesses was a paid police informant. Id. Furthermore, a
pretrial transcript revealed that the “other witness’ trial
testimony had been intensively coached by prosecutors and law
enforcement officers.” Id.The district court granted Banks’ petition with respect to his
death sentence, but the court of appeals reversed, finding that
Banks had documented his claims of prosecutorial misconduct too
late and in the wrong forum. Id. The Supreme Court reversed the
lower court’s decision and held that Banks had demonstrated the
requisite cause for his failure to raise a Brady claim in state
proceedings. Id. The court reached its conclusion by applying the
tripartite test announced in Strickler v. Greene, 527 U.S. 263, 289
(1999):
(a) prosecution withheld exculpatory evidence; (b)
petitioner reasonably relied on the prosecution’s open
file policy as fulfilling the prosecution’s duty to
disclose such evidence; and (c) the [State] confirmed
petitioner’s reliance on the open file policy during
state habeas proceedings that petitioner had already
received everything known to the government.
Banks, 540 U.S. at 692-93. We now apply the Strickler factors to
the facts of the instant case.
8
Walker argues that the first Strickler factor, that the
prosecution failed to disclose Brady material, is met in the
instant case. We agree. As detailed below, the Commonwealth knew
of, but failed to disclose, police reports that contain evidence
which challenges the credibility of Bianca Taylor’s alleged
eyewitness testimony.
Specifically, in a signed affidavit, Walker’s habeas counsel
attested that several Freedom of Information Act (FOIA) requests
were sent to the Richmond Police Department, the Office of the
Attorney General, the Office of the Commonwealth Attorney, and the
Virginia Department of Corrections seeking to obtain any Brady
material in the Stanley Beale and Clarence Threat files. (J.A. at
491.) Two days before Walker’s state habeas petition was due,
Walker’s counsel received the Beale police reports in response to
his requests. (J.A. at 494.) Walker relies on the following of
those reports in support of his Bianca Brady claim:
1. In a Supplementary Offense Report dated November 22,
1996, Officer David Ernst summarized his initial
investigation of the murder of Stanley Beale and stated
that Bianca Taylor “could provide no further information”
other than describing shots being fired. (J.A. at 537.)
2. In the handwritten notes of Detective Curtis Mullins,
dated November 22, 1996, Mullins states that “13 yr. old
heard voice and stated that it sounded like Todd and she
9
was positive that it was Todd[ ].” (J.A. at 485, 859.)
This note was based on a brief summary of information
verbally provided to Mullins by Hickman and Ernst from
the night of the murder. (J.A. at 856-57.) Mullins did
not personally talk to Bianca until February 1, 1997.
(J.A. at 857.)
3. On December 16, 1996, Detective Mullins prepared another
Supplementary Offense Report. According to the report,
“[Bianca] stated that she recognized the voice of the
subject as a BM by the name of Todd or Ty.” (J.A. at 489,
866.) This report was based on other officers’ reports.
(J.A. at 857.)
4. In Detective James Hickman Sr.’s affidavit, he states
that “Bianca did not report witnessing the actual
shooting of Stanley Beale.” (J.A. at 543A.) Hickman
subsequently retracted this affidavit and submitted a
second affidavit stating that Bianca “describe[d] her
father’s murderer to me.” (J.A. at 841.)
On June 15, 2000, Ernst signed an affidavit stating that
Bianca “‘could provide no other information’ . . . because of her
emotional state.” (J.A. 835.) We therefore will not consider
Officer Ernst’s supplemental offense report in making our decision
today. The other documents listed above, however, provide
compelling evidence suggesting that Bianca never saw the intruder
10
the night of the murder and that she based her identification of
Walker solely on the intruder’s voice.
We now turn to consideration of the above-referenced police
reports. As noted above, Detective Mullins wrote two reports based
on summaries provided by officers who interviewed Bianca the night
of the murder. In the first report written on November 22, 1996,
he states that a “13 yr. old heard voice and stated that it sounded
like Todd and she was positive that it was Todd[ ].” (J.A. at 485,
859.) In December of 1996, Detective Mullins wrote in a
supplemental police report, “[Bianca] stated that she recognized
the voice of the subject as a BM by the name of Todd or Ty.” (J.A.
at 489, 866.)
Next, an affidavit submitted by Detective Hickman stated that
Bianca recognized the murderer’s voice but was unable visually to
identify him. (J.A. at 543A.) Hickman subsequently retracted this
affidavit and submitted a second affidavit stating that Bianca
“describe[d] her father’s murderer to me,” (J.A. at 841.) The
handwritten notes accompanying his affidavit contain a physical
description of the person Bianca knew as “Todd.” (J.A. at 847.)
Detective Hickman’s handwritten notes detailing Bianca’s
description, however, fail to indicate that she saw “Todd” on the
night of the murder. Furthermore, Bianca’s description, unlike
Catherine Taylor’s portrayal of the intruder, fails to mention what
the intruder was wearing. (J.A. at 844.)
11
The Commonwealth argues that the autopsy and pre-sentence
reports, both of which were provided to Walker, contain the same
information found in the withheld police reports. We disagree.
The autopsy report, which was received by Walker prior to
trial, stated that unnamed “witnesses inside the home heard the
shots but did not witness the shooting.” (Supp. J.A. at 7.)
(emphasis added). Moreover, the pre-sentence report stated that
“[Catherine Taylor] . . . and the daughter, Bianca fled into the
bathroom. . . . It was at that time, she heard three shots fired.”
(Pet’r Supp. App. 249-50.) (emphasis added). The pre-sentence
report also states that Bianca advised Detective Hickman that “she
recognized the voice of the suspect as a black male by the name of
‘Todd or Ty.’” (Pet’r Supp. App. 250.)
Simply put, the availability of the autopsy and pre-sentence
reports does not satisfy the prosecutor’s duty to disclose the
other Brady material to Walker. The withheld reports provide
persuasive evidence that Bianca did not see the shooter the night
of the murder, whereas the files that were available earlier
suggest only that Bianca did not witness the shooting. As such,
the withheld documents would have provided substantial evidence
impeaching Bianca’s trial testimony that she saw the person who
shot her father. (J.A. at 27.) Thus, we find the first Strickler
factor met here.
12
The second Strickler factor sets forth a requirement that it
was reasonable for the petitioner to rely on the government’s
assertion that it fulfilled its duty to disclose all Brady
material. Strickler, 527 U.S. at 289. We find that Walker has met
this requirement.
We begin our discussion of this factor by noting that
Walker’s reliance argument is much stronger than that found in both
Strickler and Banks in a notable respect: Walker filed a formal,
explicit request for the disclosure of all Brady material. (Supp.
J.A. at 32.) In contrast, Banks relied on the prosecutor’s
assurances that the prosecutor would, “without necessity of motions
provide you with all discovery to which you are entitled.” Banks,
540 U.S. at 677 (internal quotation marks and citations omitted).
Likewise, Strickler relied on the prosecution’s “open file policy”
and the State assured him that a formal Brady motion was
unnecessary. Strickler, 527 U.S. at 287.
Although the prosecutor did not respond in writing to Walker’s
Motion for Discovery and Inspection, she confirmed in open court
that the Commonwealth had “provided the discovery that we are
required to disclose, pursuant to the Rules of the Supreme Court
and the statutory provisions that may be provided in the Virginia
Code.” (J.A. at 10.) Subsequently, when Walker’s counsel continued
to press the issue of disclosure during the motions hearing, the
judge reassured him that the Commonwealth is constitutionally
13
required to disclose any Brady material. (J.A. at 11.) Therefore,
we find that Walker was reasonable not only in relying on the
presumption that the Commonwealth would faithfully perform its duty
to disclose, but also in relying on the explicit representation
that the prosecution had disclosed all Brady material. Banks, 540
U.S. at 698 (“It was not incumbent on Banks to prove these
representations false[.]”).
The contention that documents in Walker’s possession might
suggest that Bianca provided contradicting statements at trial does
not diminish the reasonableness of Walker’s reliance on the
Commonwealth’s representation that it had complied fully with
Brady. In Strickler, the Supreme Court held that, even assuming
the petitioner knew of the impeaching documents available in the
prosecutor’s file, it was reasonable for the petitioner to accept
the State’s “open file policy” and believe no additional impeaching
evidence existed. 527 U.S. at 285. We, too, find it was not
unreasonable for Walker to assume no additional Brady material
existed after the prosecutor told him that the only such evidence
related to the Beale murder was the presence of drugs in the
victim’s system. (J.A. at 481.)
The Commonwealth also argues that it was unreasonable for
Walker to rely on the prosecution’s affirmative response since
Walker could have reasonably discovered all the information later
14
obtained by his habeas counsel’s FOIA requests. We are
unpersuaded.
The actual response to Walker’s habeas counsel’s requests is
indicative of the “hunt” Walker embarked upon to obtain Brady
material. The Attorney General denied outright Walker’s request
for the Beale and Threat files. (J.A. at 492.) The police,
however, turned over the Beale file. (J.A. at 491.) Nevertheless,
when Walker’s habeas counsel followed up on the Threat file, he was
informed that releasing the Beale file had been an error and the
Attorney General advised the police not to disclose the Threat
file. (J.A. at 493.)
The Commonwealth’s argument ignores the well-settled law that
the prosecutor had a duty to disclose Brady material to Walker.
Strickler, 527 U.S. at 280. It is also violative of due process,
as it condones the prosecutor’s ability to conceal documents and
requires a defendant to search for Brady material. Banks, 540 U.S.
at 696 (“A rule thus declaring prosecutor may hide, defendant must
seek, is not tenable in a system constitutionally bound to accord
defendants due process.”) (internal quotation marks and citations
omitted).
In short, the cause analysis focuses on prosecutorial
misconduct, not on the defendant’s diligence. Furthermore,
Strickler instructs us that the existence of cause ordinarily turns
on factors external to the defense which, as in the instant case,
15
impeded defense counsel’s efforts to comply with the State’s
procedural rule. Strickler, 527 U.S. at 283 n.24.
The third and final Strickler factor requires that the
prosecution confirm the petitioner’s reliance on the State’s
disclosure. Strickler, 527 U.S. at 289. We find that Walker has
satisfied this requirement.
As a preliminary matter, it bears noting that in Strickler and
Banks, the State confirmed the defendant’s reliance during state
habeas proceedings. Strickler, 527 U.S. 278; Banks, 540 U.S. 692-
93. Walker, however, received the Brady material before his state
habeas proceeding. Nevertheless, “[t]he standard for cause should
not vary depending on the timing of a procedural default.”
Strickler, 527 U.S. at 284 (internal quotation marks and citation
omitted).
As already observed, prior to trial, the Commonwealth conveyed
to Walker’s counsel that the only Brady material related to the
Beale murder was the fact that the victim had drugs in his system.
(J.A. at 481.) The Commonwealth later confirmed at a pretrial
motions hearing that it had disclosed all Brady materials. (J.A. at
10.) This being the case, it is unnecessary for Walker to
establish that the Commonwealth confirmed his reliance again during
trial or on appeal. Stated differently, it was reasonable for
Walker to assume that the prosecution would comply with a formal
Brady motion without the need of constant confirmation. Therefore,
16
we find that Walker has established cause such that he may be
entitled to an evidentiary hearing on his Bianca Brady claim.
B.
Although we have found that Walker has established cause, to
receive relief in federal court, he must also demonstrate that
actual prejudice resulted from his failure to develop facts in
state court proceedings. Banks, 540 U.S. at 690-91 (“Banks would
be entitled to an evidentiary hearing in federal court if he could
show cause for his failure to develop the facts in state-court
proceedings and actual prejudice resulting from that failure.”)
(internal quotation marks, alterations and citation omitted). To
establish prejudice sufficient to overcome procedural default, the
withheld evidence must be material. Id. at 698; Strickler, 527
U.S. at 282. Materiality is satisfied when “favorable evidence
could reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict.” Banks, 540 U.S.
at 698 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Under
this standard, Walker must demonstrate that there is a “reasonable
probability of a different result.” Kyles, 514 U.S. at 434.
In Banks, the Supreme Court found prejudice because the lack
of physical or forensic evidence made the witness’ testimony
crucial to the prosecution. Banks, 540 U.S. at 701. According to
the Court, this was evident by the prosecution’s repeated
17
references to the withheld evidence during the penalty phase to
underscore Banks’ propensity to commit violent crimes. Id. at 700.
Although Banks’ trial counsel provided two witnesses to impeach the
police informant, the defense witnesses were themselves impeached,
a fact the prosecution stressed during its summation. Id. at 702.
In Strickler, however, the Court did not find the requisite
prejudice to overcome default. 527 U.S. at 296. The testimony of
the witness whose impeachment was at issue, “did not relate to [the
petitioner’s] eligibility for the death sentence and was not relied
upon by the prosecution at all during its closing argument at the
penalty phase.” 527 U.S. at 295. Furthermore, the Court noted
indications that Strickler would have been sentenced to death even
if the witness’ testimony had been completely excluded. Id. at
296. For example, two other eyewitnesses placed petitioner at the
mall where the victim was abducted and “considerable forensic and
other physical evidence link[ed] petitioner to the crime.” Id. at
293-94 (footnote omitted).
Here, similar to Banks, and unlike Strickler, the lack of
forensic or other eyewitness evidence made Bianca’s testimony
crucial to the prosecution and, thus, not cumulative. Banks, 540
U.S. at 701 (stating that the testimony of the police informant,
whose informant status was withheld, was “critical”); Strickler,
527 U.S. at 292 (finding that the evidence provided compelling
support for the conclusion that the petitioner would have been
18
convicted of capital murder notwithstanding the testimony of
witness whose impeachment was in question.) The prosecutor relied
heavily on Bianca’s testimony as she made repeated references to
Bianca’s identification of Walker as the shooter. Further, the
prosecution emphasized to the jury that the case “comes down to
identification and credibility.” (J.A. at 164-65.) The withheld
documents could have been used by Walker, therefore, to undermine
both Bianca’s ability to properly identify Walker as the shooter
and her overall credibility.
Bianca’s testimony was the “centerpiece” of the case against
Walker on the Beale murder because she was the sole “eyewitness.”
Banks, 540 U.S. at 701 (stating that the police informant’s
testimony was the “centerpiece” of the prosecution’s penalty-phase
case). No one else in the apartment with Bianca was able to
identify Walker. Moreover, unlike Strickler, the only physical
evidence here that linked Walker to the crime was an unfired
bullet. (J.A. at 86-92, 106-08, 149-50.)
Given the dearth of physical evidence and the centrality of
Bianca’s testimony, the withheld evidence “could reasonably be
taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Kyles, 514 U.S. at 435(footnote omitted). Furthermore, had Walker not been convicted of
the murder of Beale, the Threat murder alone would not have been a
sufficient basis for a capital murder conviction. Va. Code Ann. §
1918.2-31(8) (“The following offenses shall constitute capital murder
. . . The willful, deliberate, and premeditated killing of more
that one person within a three-year period.”); see also Strickler,
527 U.S. at 295 (finding that the witness at issue “did not relate
to the [the petitioner’s] eligibility for the death sentence.”)
Without Bianca’s testimony, the only evidence linking Walker
to the Beale murder is the uncorroborated testimony of Tameria
Patterson that she saw Walker enter the Randolph apartment and say
“I shot him.” (J.A. at 52.) This lack of evidence underscores the
centrality of Bianca’s testimony. Consequently, we find that
Walker has established that actual, significant prejudice resulted
from his inability to develop the factual basis of his Bianca Brady
claim at trial.
IV.
For the foregoing reasons, we hold that Walker has established
sufficient cause and prejudice to overcome the procedural default
of his Bianca Brady claim and that an evidentiary hearing on the
merits of his Bianca Brady claim is appropriate. Accordingly, the
judgment of the district court is vacated and this case is remanded
for an evidentiary hearing on Walker’s Bianca Brady claim.
VACATED AND REMANDED
20
GREGORY, Circuit Judge, concurring:
I concur in the opinion of the Court. I write separately,
however, to make two observations. First, I wish to emphasize that
Banks v. Dretke, 540 U.S. 668 (2004), enhanced the cause inquiry by
making the prosecution’s conduct the central focus. Second, in my
view, Walker has satisfied the elements of a Brady claim such that
we can remand for a new trial without need of an evidentiary
hearing.
In remanding this case for reconsideration, the Supreme Court
instructed us to consider this case anew in light of Banks. We
last considered the question of whether Walker has shown cause and
prejudice sufficient to excuse the procedural default of his Bianca
Brady claim in 2003. See Walker v. True, 67 Fed. Appx. 758 (4th
Cir. 2003). In that now vacated and withdrawn opinion, we
considered only whether Walker had knowledge of the facts
underlying his Bianca Brady claim. There, we stated that “[i]f
Walker . . . was aware or should have been aware that documents had
been suppressed when he appealed his conviction, suppression of the
documents would not constitute cause for failure to bring a Brady
claim.” Id. at 767. However, as made clear in Banks, that is not
the end of the cause inquiry.
Banks revives Walker’s Bianca Brady claim by clarifying that
where the cause inquiry is considered, the chief concern is the
prosecution’s--not the defendant’s--conduct. In Banks, the Supreme
21
Court rejected the State of Texas’s view that the question of cause
“revolves around” the defendant’s conduct. See Banks, 540 U.S. at
695. The Court instead stated that “the cause inquiry . . . turns
on events or circumstances external to the defense.” Id. at 696(internal quotation marks and citations omitted); see also id. at
675-76 (“When police or prosecutors conceal significant exculpatory
or impeaching material in the State’s possession, it is ordinarily
incumbent on the State to set the record straight.”).
Specifically, in Banks, the State contended that “the prosecution
can lie and conceal and the prisoner still has the burden to . . .
discover the evidence, so long as the potential existence of a
prosecutorial misconduct claim might have been detected.” Id. at
696 (internal quotation marks and citations omitted). The Court
did not agree, stating that “[a] rule thus declaring ‘prosecutor
may hide, defendant must seek,’ is not tenable in a system
constitutionally bound to accord defendants due process.” Id. The
Court’s decisions therefore “lend no support to the notion that
defendants must scavenge for hints of undisclosed Brady material
when the prosecution represents that all such material has been
disclosed. . . . [D]efense counsel has no ‘procedural obligation to
assert constitutional error on the basis of mere suspicion that
some prosecutorial misstep may have occurred.’” Id. at 695-96.
Further, in making the prosecution’s conduct the central focus
of the cause inquiry, the Court acknowledged the “special role
22
played by the American prosecutor in the search for truth in
criminal trials.” Banks, 540 U.S. at 696 (citation omitted). In
light of a prosecutor’s truth-finding obligations, the Court
concluded that Banks was entitled to rely on the prosecution’s
representations. See id. at 698 (“Banks’s prosecutors represented
at trial and in state postconviction proceedings that the State had
held nothing back. Moreover, in state postconviction court, the
State’s pleading denied that Farr was an informant. It was not
incumbent on Banks to prove these representations false; rather,
Banks was entitled to treat the prosecutors’ submissions as
truthful.” (internal citations omitted)). Likewise, the Court
concluded that “it was . . . appropriate for Banks to assume that
his prosecutors would not stoop to improper litigation conduct to
advance prospects for gaining a conviction” by standing silent as
a key prosecution witness repeatedly testified untruthfully. Id.
at 694.
The instant case presents facts akin to those in Banks. As in
Banks, the prosecution told the defendant and the court that it had
disclosed all Brady material although it had in fact withheld the
police reports at issue. At trial, the prosecution allowed Bianca
to testify in a seemingly untruthful fashion, all the while
emphasizing the importance and credibility of her testimony. Cf.
Banks, 540 U.S. at 675 (“Instead of correcting the informant’s
false statements, the prosecutor told the jury that the witness
23
‘ha[d] been open and honest with you in every way,’ and that his
testimony was of the ‘utmost significance’.” (internal citations
omitted)). We did not consider these facts the last time we
addressed Walker’s Brady claim, however.
In light of Banks, these egregious, affirmative acts of
prosecutorial misconduct cannot be ignored simply because Walker
overlooked a hint of prosecutorial misconduct. Unlike the police
reports themselves, which strongly suggest that Bianca did not see
the intruder who shot her father, the PSR only indicates that on
one occasion Bianca referred to having recognized Walker’s voice.
The PSR does not reveal that on the night of the murder, Bianca
never indicated having seen the intruder or that her statement
about recognizing the intruder’s voice was corroborated on multiple
occasions. Therefore, when placed in the context of the
prosecution’s representations that it had satisfied its obligations
under Brady, its standing by as Bianca seemingly perjured herself,
and its repeated assertions that Bianca was a trustworthy witness,
the PSR’s single mention of Bianca’s voice identification of Walker
provides no more than an inkling of prosecutorial misconduct.
Simply put, the solitary reference to Bianca’s hearing of the
intruder’s voice could have been disregarded by a defendant
inclined to believe “that his prosecutors would not stoop to
improper litigation conduct to advance prospects for gaining a
24
conviction.” Banks, 540 U.S. at 694. Accordingly, I agree that
Walker has shown cause for his procedural default.
Finally, I believe that Walker’s showing of cause and
prejudice is not merely sufficient to overcome the procedural
default, but also to satisfy the second and third elements of a
Brady claim. As observed in Banks, a defendant who shows cause and
prejudice to excuse a procedural default simultaneously satisfies
the second and third elements of a Brady claim--evidence suppressed
by the state and prejudice, respectively. See Banks, 540 U.S. at
691. Without question, the first Brady element--the suppressed
evidence is favorable to the accused--is satisfied here. See
Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (setting forth the
elements of a Brady claim). Indeed, the undisclosed reports
contain powerful impeachment material, which calls into question
the veracity of Bianca’s testimony. Thus, I believe that the
conclusion that a Brady violation occurred flows from the finding
of cause and prejudice. Accordingly, in lieu of remanding for an
evidentiary hearing, I believe we could hold that Walker’s due
process rights were violated, grant the writ, and remand for a new
trial.
25
WILLIAMS, Circuit Judge, dissenting:
With all due respect to the majority, I dissent. I disagree
with the majority’s conclusion that Walker has shown cause
sufficient to excuse his failure to raise in state1 court his claim
under Brady v. Maryland, 373 U.S. 83 (1963). In my view, the
Presentence Report (PSR) was plainly sufficient to make Walker
aware of the factual basis of his Brady claim. I would therefore
affirm the district court’s dismissal of Walker’s § 2254 petition
without evaluating whether Walker has shown prejudice.
I.
On or around the night of Beale’s murder, officers, including
Officer Mullins and Detective Hickman, interviewed Beale’s daughter
Bianca. According to the officers’ notes, reports, and affidavits
(collectively “reports”), Bianca stated that she recognized her
father’s murderer by his voice. (J.A. at 485 (“[Bianca] heard a
voice and stated it sounded like [Walker] and she was positive that
it was [Walker].” (Mullins’ notes)); 489 (“[Bianca] stated that she
recognized the voice of the subject . . . .” (Mullins report); 543A
(“[Bianca] stated she recognized the voice of the perpetrator. . .
.” (Hickman Aff.)).) Because eyewitnesses to events generally do
not describe the people who undertook those events by the sound of
their voice, these reports tend to suggest that Bianca did not
1
I use the familiar term “state” in lieu of “Commonwealth of
Virginia.”
26
actually see Walker break into the apartment and kill her father.
The prosecution did not share the officers’ reports with Walker
despite its pre-trial representation that it had provided Walker
all documents it was required to disclose. At Walker’s trial,
Bianca testified that: (1) she saw Walker come inside the apartment
of her mother and father; (2) she saw that Walker was holding a
gun; (3) she yelled at Walker, “my father don’t know you;” (4) she
saw Walker shoot her father; and (5) once the shooting started she
ran into the bathroom. (J.A. at 25-29.)
Approximately four months before trial, Walker’s counsel was
given a copy of Beale’s Autopsy Report, which stated that
“[w]itnesses inside the [Beale apartment] heard the shots but did
not witness the shooting.” (Supp. J.A. at 7). Counsel did not
cross-examine Bianca with respect to the contents of the Autopsy
Report. After his conviction, but before his sentencing, the state
prepared a PSR, which it gave to Walker. In relevant part, the PSR
states:
Bianca Taylor, the victim’s daughter advised police she
was talking on the phone with a neighbor. . . . She
further advised police [that the neighbor] stated [to
Bianca,] “[Walker] and his girlfriend] are coming to talk
to you.” Shortly thereafter, the shots began. Bianca
Taylor later advised Detective Hickman that she
recognized the voice of the suspect . . . .
(Pet’r Supp. App. at 250.) Despite the fact he was in possession
of the Autopsy Report and the PSR, Walker did not raise a Brady
claim with respect to the officers’ reports on direct appeal.
27
Instead, Walker first raised his Brady claim in his state habeas
corpus petition. The state court concluded that Walker’s Brady
claim was procedurally defaulted under Slayton v. Parrigan, 205
S.E.2d 680, 682 (Va. 1974) (holding that state habeas petitioner
waives argument on habeas review that “could have been raised and
adjudicated at . . . trial and upon . . . appeal”).
Walker filed a § 2254 petition in the United States District
Court for the Eastern District of Virginia, raising, inter alia,
his Brady claim. The district court dismissed Walker’s petition,
concluding, in relevant part, that the Brady claim was procedurally
defaulted and that Walker had not shown cause and prejudice to
excuse his default. Judge Gregory granted Walker a Certificate of
Appealability on his Brady claim. On the merits, however, the
panel unanimously affirmed, concluding that Walker could not show
cause for his procedural default because the PSR made Walker aware
of “the factual basis [of his] Brady claim.” See Walker v. True,
67 F. App’x 758, 767-68 (4th Cir. 2003). The Supreme Court vacated
and remanded for further consideration in light of Banks v. Dretke,
124 S. Ct. 1256 (2004). See Walker v. True, 126 S. Ct. 1028(2006).
II.
As he did in his original appeal to this Court, Walker argues
that he has shown “cause and prejudice” to overcome the procedural
28
default of his Brady claim. As to cause, he contends that the PSR
and Autopsy Report were insufficient to make him aware of the
factual basis of his claim because those reports suggested only
that Bianca did not see the shooting, not that she did not see the
shooter. Virginia argues -- as we held in our original opinion --
that the PSR was sufficient to make Walker aware of the factual
basis of his Brady claim. I continue to agree with Virginia.
A federal court conducting habeas review is “precluded from
reviewing the merits of a claim that was procedurally defaulted
under an ‘independent and adequate’ state procedural rule, ‘unless
the [applicant] can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.’” Fisher v. Lee, 215 F.3d 438,
455 (4th Cir. 2000) (alteration in original) (quoting Coleman v.
Thompson, 501 U.S. 722, 750 (1991)). Walker does not dispute that
the state court applied an adequate and independent procedural rule
in finding that his Brady claim was procedurally defaulted.
Moreover, he does not argue that failure to consider his Brady
claim will result in a fundamental miscarriage of justice.
Instead, he asserts only that “cause and prejudice” exist to excuse
the default. We review de novo the district court’s legal
conclusions respecting cause and prejudice. See Burroughs v.
Makowski, 411 F.3d 665, 667 (6th Cir. 2005).
29
In Strickler v. Greene, 527 U.S. 263 (1999), the Supreme Court
set forth the three requirements for a successful Brady claim: “[1]
the evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; [2] the
evidence must have been suppressed by the State, either willfully
or inadvertently; and [3] prejudice must have ensued.” Id. at 281-
82. As the Supreme Court noted in Strickler, the second and third
elements of a successful Brady claim overlap with the “cause and
prejudice” showing that will excuse a petitioner from a procedural
default. Id. at 282; see also Banks, 124 S. Ct. at 1274(“Corresponding to the second Brady component (evidence suppressed
by the State), a petitioner shows ‘cause’ when the reason for his
failure to develop facts in state-court proceedings was the State’s
suppression of the relevant evidence; coincident with the third
Brady component (prejudice), prejudice within the compass of the
‘cause and prejudice’ requirement exists when the suppressed
evidence is ‘material’ for Brady purposes.”).
In Strickler, the defendant had been convicted of capital
murder, based, in part, on a witness’s testimony that she had seen
the defendant violently abduct the victim. 527 U.S. at 270-73.
Despite the prosecution’s open file policy, notes of the
investigating officer and witness -- which revealed that the
witness’s memory of the abduction was hazy and that, from what she
could remember, she had “totally [written the abduction] off as a
30
trivial episode of college kids carrying on,” id. at 273-75 --
were not given to the defendant until after he had filed an
unsuccessful direct appeal and state habeas petition. On appeal
from the district court’s grant of the defendant’s § 2254 petition,
which raised a Brady claim relating to the witness’s testimony, the
Fourth Circuit held that the defendant’s Brady claim was
procedurally defaulted and that the defendant could not show cause
because “he should have known [about the police reports] through
the exercise of reasonable diligence.” Id. at 279.
The Supreme Court disagreed, holding instead that the
defendant had shown cause because: “(a) the prosecution withheld
exculpatory evidence; (b) petitioner reasonably relied on the
prosecution’s open file policy as fulfilling the prosecution’s duty
to disclose such evidence; and (c) the state confirmed petitioner’s
reliance on the open file policy by asserting during state habeas
proceedings that petitioner had already received everything known
to [it].” Id. at 289 (internal quotation marks and footnote
omitted).2 The state argued that the defendant’s reliance on its
open file policy was not reasonable because (1) counsel was aware
that the witness had been interviewed by the police and (2) counsel
could have made a motion for discovery of the files in the state
courts, id. at 284-85, but the Supreme Court disagreed, stating
2
The Supreme Court left open the question “whether any one or
two of these factors would be sufficient to constitute cause.”
Strickler v. Greene, 527 U.S. 263, 289 (1999).
31
that although the defendant was aware of the witness’s interviews,
“it by no means follows that [counsel] would have known that the
records pertaining to those interviews . . . existed and had been
suppressed . . . . [D]efense counsel [has no] procedural obligation
to assert constitutional error on the basis of mere suspicion that
prosecutorial misstep may have occurred,” id. at 285-87 (emphasis
added). The Court distinguished those cases in which cause was not
found for the failure timely to raise a Brady claim by stating
that, in those cases, the petitioner “was previously aware of the
factual basis for his claim.” Id. at 287. See also McCleskey v.
Zant, 499 U.S. 467, 502 (1991)) (“[E]ven if the State intentionally
concealed the 21-page document, the concealment would not establish
cause here because, in light of McCleskey's knowledge of the
information in the document, any initial concealment would not have
prevented him from raising the claim in the first federal
petition.”); Hoke v. Netherland, 92 F.3d 1350, 1354 n.1 (4th Cir.
1996) (“Because it appears that the information, the withholding of
which Hoke contends entitles him to relief, was available to Hoke,
it is quite likely that he in fact did default his Brady claim by
not presenting that claim in his initial state habeas
proceeding.”).
In Banks, the defendant had been convicted of capital murder
based, in part, on the testimony of a paid police informant. 124
S. Ct. at 1264-65. The prosecutor asked the witness at trial
32
whether he had been promised anything in exchange for his testimony
and, despite knowing the truth about the witness’ status, the
prosecutor did not correct the record when the witness testified in
the negative. Id. In fact, although the prosecutor had an open
file policy, he did not disclose this information until after the
petitioner had filed an unsuccessful appeal and two state habeas
petitions. Id. at 1269. On appeal from the district court’s grant
of the defendant’s § 2254 petition, which raised a Brady claim
relating to the witnesses’ testimony, the Fifth Circuit held that
Banks’s Brady claim was procedurally defaulted because he had
failed to develop that claim in his state proceedings. Id. at
1270.
Noting that, as to cause, Banks’s “case is congruent with
Strickler in all . . . respects,” id. at 1273, the Supreme Court
applied Strickler’s three-part cause test, id. (examining whether
prosecution withheld exculpatory evidence, whether petitioner
reasonably relied on the prosecution’s open file policy, and
whether the state confirmed petitioner’s reliance), reiterating
Strickler’s admonition that the petitioner’s reliance on the
Government’s open file policy is reasonable if he has nothing more
than “mere suspicion” of a Brady violation, id. at 1275 (quoting
Strickler, 527 U.S. at 287). Accordingly, although Banks had
suspicions that the witness was well-connected with law enforcement
and could have discovered the truth by deposing the witness or the
33
police officer who paid him, Banks’s failure to act on those
nascent suspicions did not prevent the Court from finding cause for
his failure timely to raise his Brady claim. Id. at 1275-76.
Moreover, the Court concluded that the reasonableness of Banks’s
reliance on the prosecution’s open file policy was even greater
than in Strickler because the Brady material went directly to the
prosecutions’s dealings with the witnesses -- in fact, it was the
prosecution who coached them -- and “it was appropriate for Banks
to assume that his prosecutors would not stoop to improper
litigation conduct to advance prospects for gaining a conviction.”
Id. at 1273-74.
In my view, even assuming the Autopsy Report implied only that
Bianca did not witness the actual shooting –- and not that she did
not witness the shooter -- the PSR plainly gave Walker more than a
“mere suspicion” that police reports existed suggesting Bianca did
not witness the shooter. Accordingly, Walker’s reliance on the
prosecutor’s representation that he had disclosed all material he
was required to disclose was unreasonable under Strickler and
Banks. First, the PSR specifically states that the information
contained therein came from officers’ investigation of the Beale
murder, a statement that, unlike the facts in Strickler and Banks,
indicated to Walker that there were extant documentation of the
investigation. Second, and also unlike the facts involved in
Strickler and Banks, the PSR detailed the contents of those
34
reports, and actually went so far as to state that “Bianca . . .
advised Detective Hickman that she recognized the voice of the
suspect. . . .” (J.A. at 250.) Because, as already explained,
eyewitnesses to events generally do not describe the people who
undertook those events by describing the sound of their voice, the
PSR was sufficient to put Walker on notice that there were police
reports supporting an inference that Bianca did not see him the
night of her father’s murder. Indeed, I find it baffling that the
majority can conclude both that “the withheld reports provide
persuasive evidence that Bianca did not see the shooter the night
of the murder” because they state that Bianca only recognized the
shooter by his voice, ante at 12 (emphasis added), and at the same
time that the PSR, which noted the existence of those reports and
parroted their relevant substance, somehow failed to give Walker
anything more than a mere suspicion of the factual basis of his
Brady claim.
Accordingly, Walker’s awareness of the existence of the
alleged Brady material prior to his sentencing removes this case
from the Strickler/Banks framework. Because Walker knew of the
existence of the alleged Brady material in time to pursue his Brady
claim on direct appeal, there is no reason to relieve him of the
consequences of his failure to have done so.3
3
My good colleague Judge Gregory confuses this point. He
notes that in Banks v. Dretke, 124 S. Ct. 1256 (2004), the Supreme
Court reaffirmed that defendants need not “scavenge for hints of
undisclosed Brady material when the prosecution represents that all
35
As we concluded in our earlier opinion in this case, “[the
PSR], by referencing these undisclosed documents, evidenced the
Commonwealth’s suppression of the alleged Brady material. The
factual basis for the assertion of Walker’s Brady claim, therefore,
was available . . . before [his] direct appeal. . . .” Walker, 67
F. App’x at 767-68. “Because the [PSR] provided direct evidence
that the Commonwealth had failed to disclose the alleged Brady
material, Walker’s reliance on Strickler for the premise that his
appellate counsel had no basis to raise a Brady claim is therefore
misplaced.” Id. at 767 n. 6. Because nothing in Banks even
arguably undermines this conclusion, I respectfully dissent.4
such material has been disclosed.” Id. at 1275. This statement,
however, hardly was a new statement of law considering that the
Supreme Court in Strickler rejected “the novel suggestion that
conscientious defense counsel have a procedural obligation to
assert constitutional error on the basis of mere suspicion that
some prosecutorial misstep may have occurred.” Strickler, 527 U.S.
at 286-87. Banks, in fact, did nothing to alter Strickler’s cause
inquiry. See Banks, 124 S. Ct. at 1272 (“Our determination as to
‘cause’ for Banks’s failure to develop the facts in state-court
proceedings is informed by Strickler.”); id. at 1272 n.12
(expressing surprise at the Fifth Circuit’s failure below to refer
to Strickler, “the controlling precedent on the issue of ‘cause’”);
id. at 1273 (“This case is congruent with Strickler in all three
[cause factor] respects.”). The only difference with respect to
the cause showing between Banks and Strickler was that “Banks’s
case [was] stronger than was the petitioner’s in Strickler.” Id.
Thus, the Supreme Court in Banks did not alter the cause inquiry,
but instead merely found cause in a case where the facts were
slightly more egregious than those in Strickler. It is difficult,
then, to comprehend Judge Gregory’s contention that Walker can now
show cause “[i]n light of Banks,” ante at 24, when he was unable to
do so in light of Strickler. Walker v. True, 67 F. App’x 758 (4th
Cir. 2003).
4
The majority concludes that Walker has shown both cause and
prejudice to excuse his procedural default. As discussed, this
36
conclusion means that Walker has satisfied two of the three
elements of a successful Brady claim. See Strickler, 527 U.S. at
282 (equating the “cause and prejudice” showing with the second and
third elements of a Brady claim). The majority therefore remands
for the district court to determine only whether Walker has shown
the third element of a Brady claim; that is, that “the evidence at
issue is favorable to [Walker], either because it is exculpatory or
because it is impeaching.” Id. at 281-82. Although the majority
strangely refrains from addressing this legal question, its
statement that “[t]he withheld reports provide persuasive evidence
that Bianca did not see the shooter the night of [her father’s]
murder,” ante at 12, answers this question in the affirmative. In
essence, then, as suggested by Judge Gregory’s concurrence, the
majority opinion results in an inevitable grant of Walker’s § 2254
petition.
37