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UNPUBLISHED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Vacated and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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. §

19
18.2-31(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

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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