PUBLISHED
Filed: March 9, 2010
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DARICK DEMORRIS WALKER,
Petitioner-Appellant,
No. 08-11
v.
(1:01-cv-01196-
LORETTA K. KELLY, Warden, CMH-TCB)
Sussex I State Prison,
Respondent-Appellee.
ORDER
In a poll requested by a member of the court on the petition
for rehearing en banc, Judges Michael, Motz, Gregory, and
Davis voted to rehear the case en banc. Chief Judge Traxler
and Judges Wilkinson, Niemeyer, King, Shedd, Duncan, and
Agee voted to deny rehearing en banc. As a majority of the
active circuit judges voted against rehearing en banc and as
the panel voted to deny rehearing, the petition for rehearing
and rehearing en banc is denied.
Judge Gregory wrote an opinion dissenting from the denial
of rehearing en banc.
Entered for the court at the direction of Chief Judge Trax-
ler.
2 WALKER v. KELLY
For the Court
/s/ Patricia S. Connor
Clerk
GREGORY, Circuit Judge, dissenting from the denial of
rehearing en banc:
In Walker v. Kelly, 195 Fed. App’x 169 (4th Cir. 2006)
("Walker II"), this Court held that Walker established cause
and prejudice to overcome procedural default and thereby
proved a Brady violation. Yet, three years later, a different
panel of this Court reached the opposite conclusion on essen-
tially the same evidence. In reaching its decision, the majority
contravenes decisions of the Supreme Court and undermines
the values of finality and fairness behind the law of the case
doctrine. Although much of my reasoning is set forth in my
dissent from the majority’s opinion, Walker v. Kelly, 589 F.3d
127, 143-48 (4th Cir. 2009), I am compelled to write again
out of concern that a man will be put to death without having
a jury of his peers hear evidence vital to determining his guilt
or innocence.
The "centerpiece" of the Commonwealth’s 1998 case
against Walker for the murder of Stanley Beale, the offense
that made Walker eligible for capital punishment, was the tes-
timony of thirteen-year-old Bianca Taylor ("Bianca"). Walker
II, 195 Fed. App’x at 176. At trial, Bianca told the jury that
she saw Walker shoot her father, and the Commonwealth
relied heavily on her testimony as the sole "eyewitness." Id.
But, as this Court found in 2006, "the Commonwealth knew
of, but failed to disclose, police reports that contain evidence
which challenges the credibility of Bianca Taylor’s alleged
eyewitness testimony." Id. at 172. The withheld documents
"provide compelling evidence suggesting that Bianca never
saw the intruder the night of the murder and that she based her
WALKER v. KELLY 3
identification of Walker solely on the intruder’s voice." Id. at
173. The jury never heard this impeaching evidence, which
the first panel unequivocally found material to Walker’s guilt
or innocence.
As compared to every other punishment, "there is no doubt
that ‘death is different.’" Ring v. Arizona, 536 U.S. 584, 605-
06 (2002) (citation omitted); McCleskey v. Kemp, 481 U.S.
279, 340 (1987) (Brennan, J., dissenting) ("It hardly needs
reiteration that this Court has consistently acknowledged the
uniqueness of the punishment of death. . . . ‘Because of that
qualitative difference, there is a corresponding difference in
the need for reliability in the determination that death is the
appropriate punishment.’" (citations omitted)). In this capital
case involving an assertion of actual innocence and scant cor-
roboration of guilt, I strongly believe justice requires that
Walker be able to present the withheld evidence to a jury.
Thus, I respectfully dissent from the Court’s denial of rehear-
ing en banc.