REVISED 3/27/01
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40925
JAY MAYNARD FINLEY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
March 8, 2001
HILL*, JOLLY, and BENAVIDES, Circuit Judges.
* Circuit Judge of the Eleventh Circuit, sitting by designation.
JAMES C. HILL, Circuit Judge:
Jay Maynard Finley was convicted of aggravated kidnapping in
Texas state court and sentenced to ten years’ imprisonment,
probated for five years; his probation was later revoked and he
was incarcerated. After his appeal and state habeas corpus
petitions were denied, he petitioned for federal relief pursuant
to 28 U.S.C. § 2254. The district court denied the petition as
procedurally barred and this appeal ensued.
I.
Jay Maynard Finley was a city councilman for the City of
Gladewater, Texas. On July 10, 1994, Finley picked up Louis
Towery to take him to see a trailer that Towery wanted to rent.
On the way, Finley asked Towery if he had been molesting Erika,
Towery’s daughter. Towery denied it. Finley said that the
daughter had told the police that he had. At that point, Towery
became upset and said that "she had run her f**ing head" and that
he was going to have to "get them all." A few minutes later,
Towery commented that he was going to "kill the bitch." After
they arrived at their destination, Finley put a gun to Towery's
side and asked him again whether he had been molesting Erika for
years. Towery then confessed that he had.1
1
Towery’s daughter testified at trial to his years
of sexual assaulting her. Towery himself testified and
admitted under oath that he held a gun to his
daughter’s head on at least one occasion.
2
Finley bound Towery up with duct tape and took him to the
Gilmer police station. When they arrived, however, Finley became
nervous because he believed that Towery was related to a Gilmer
police sergeant named Ronald Towery. Instead of taking Towery
inside the station, he drove back toward Gladewater and left him
tied to a mailbox near the Union Grove Cemetery. Finley called
the Gladewater Police Department and told them to go pick Towery
up. Towery was released by the police a few minutes later.
At trial, Finley raised the defense of necessity, arguing
that his actions were necessary to protect Towery's wife, Martha,
and Erika from immediate harm. He was, however, convicted of
aggravated kidnapping and was sentenced to ten years confinement,
probated for five years. He filed no notice of appeal.
On October 27, 1995, Finley's probation was revoked, and he
filed a notice of appeal of the revocation that same day. On
November 27, 1995, he filed a motion for a new trial. In each of
these applications for relief, Finley asserted that he was
entitled to a new trial because the prosecution improperly
suppressed exculpatory evidence at trial in violation of Brady v.
Maryland, 373 U.S. 83 (1963). He contended that because he had
filed a pre-trial motion pursuant to Brady, the prosecutor was
required to, but did not, reveal that, two days after the alleged
kidnapping, the prosecutor had secured a restraining order
against Towery based on claims of sexual assault and domestic
3
violence. In neither of these pleadings, however, did Towery
allege when he learned of this fact.
There was no ruling on Finley’s motion for a new trial and
it was overruled by operation of law after the passage of 75
days. Tex. R. App. P. 21.8(c). His probation revocation appeal
was denied on March 14, 1997, in an unpublished opinion. He
filed an application for a writ of habeas corpus reasserting his
Brady claim, but the Texas Court of Criminal Appeals denied it
without written order on December 9, 1998.2
Finley filed the instant application for federal habeas
relief on February 26, 1999. In it, he reasserts his Brady
claim. On July 12, 1999, the district court adopted the
Magistrate Judge’s Report and Recommendation and held that Finley
has procedurally defaulted federal review of this claim and
dismissed the petition with prejudice. Finley timely filed this
appeal.
In order to obtain a Certificate of Appealability (“COA”)
from the district court, Finley had to make a substantial showing
that he had been denied a federal right. Newby v. Johnson, 81
F.3d 567, 569 (5th Cir. 1996). To do this, he had to demonstrate
that the issues are debatable among jurists of reason, that a
court could resolve the issues in a different manner, or that the
2
He filed a petition for discretionary review which
was refused by the Texas Court of Criminal Appeals on
November 5, 1997.
4
questions are adequate to deserve encouragement to proceed
further. James v. Cain, 50 F.3d 1327, 1330 (5th Cir. 1995). The
district court held that he had made such a showing with regard
to whether dismissal of his petition on the grounds of procedural
default might result in a fundamental miscarriage of justice. On
August 23, 1999, it granted him a COA on this issue.
Finley filed a motion with this court for a COA on the issue
of whether the district court erred in holding that his Brady
claim has been procedurally defaulted. On April 3, 2000, we
certified this additional ground for appeal.
We review the district court's findings of fact on these two
issues for clear error, but conduct a de novo review of its
conclusions of law. Mann v. Scott, 41 F.3d 968, 973 (5th Cir.
1994).
II.
A. Procedural Default
A claim that a state has withheld a federal right from a
person in its custody may not be reviewed by a federal court if
the last state court to consider that claim expressly relied on a
state ground for denial of relief that is both independent of the
merits of the federal claim and an adequate basis for the court's
decision. Coleman v. Thompson, 501 U.S. 722 (1991); Wainwright
v. Sykes, 433 U.S. 72 (1977); Fairman v. Anderson, 188 F.3d 635,
644 (5th Cir. 1999). To satisfy the “independent” and “adequate”
5
requirements, the dismissal must “clearly and expressly” indicate
that it rests on state grounds which bar relief, and the bar must
be strictly or regularly followed by state courts, and applied to
the majority of similar claims. See Amos v. Scott, 61 F.3d 333,
338-39 (5th Cir. 1995). This rule applies to state court
judgments on both substantive and procedural grounds. Id. Where
there has been one reasoned state judgment rejecting a federal
claim, later unexplained orders upholding that judgment or
rejecting the same claim are presumed to rest upon the same
ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
The last state court to consider Finley’s Brady claim was
the Texas Court of Criminal Appeals which did not issue a written
opinion when it dismissed his habeas petition. Pursuant to Y1st,
the federal court “looked through” this unexplained decision to
find the last state court which issued a reasoned opinion on the
issue. That court – The Texas Court of Appeals – had before it
Finley’s appeal of his probation revocation. Absent any
allegation that the Brady claim was newly discovered, the court
rejected Finley’s attempt to raise it, holding that all such
claims which could have been raised on direct appeal of his
conviction were barred. See Ex parte Gardner, 959 S.W.2d 189,
199 (Tex. Cr. App. 1996). Furthermore, the court held that the
validity of the original conviction could not be challenged in
the appeal of his probation revocation order. The federal
6
district court interpreted this decision as a holding that
Finley’s Brady claim was procedurally barred from state review.
The district court held, therefore, that the claim was barred
from federal habeas review as well. See Nobles v. Johnson, 127
F.3d 409, 420 (5th Cir. 1997).
Finley argues that the district court’s interpretation of
the Texas court’s decision is erroneous. He contends that the
Texas Court of Appeals did not hold that his Brady claim was
procedurally defaulted; only that it was without jurisdiction to
hear that claim in the context of an appeal of his probation
revocation. He contends that no Texas court has held that it was
procedurally defaulted. Furthermore, he argues that we should
hold that this claim is cognizable on federal habeas review
because he was unaware of the facts underlying his Brady claim
until long after the time for filing an appeal of his underlying
conviction had expired.
This argument has never been made to a Texas court – not on
direct appeal of his probation revocation, not in his motion for
new trial, not in his petition for discretionary review, not in
his state habeas petition. In fact, the first time this argument
appears in this case is in Finley’s objections to the
magistrate’s report recommending that the district court deny the
7
Brady claim on the grounds of procedural default.3 Such a claim
of newly discovered evidence may well have supported his Brady
claim in his motion for new trial or on state collateral attack,
but it is clear that, absent such an argument in those forums,
Finley’s Brady claim was procedurally barred there since it is
the sort of claim that could have been raised on direct appeal
but was not. Gardner, 959 S.W.2d at 199. If there is a valid
reason why it was not, Finley has never shared that reason with
the state courts.
Furthermore, since Finley now seeks federal habeas relief
based upon factual allegations that he has never made in the
Texas courts, it is clear that he has failed to exhaust his state
remedies. Nobles, 127 F.3d at 419-20. To exhaust his state
remedies, a habeas petitioner must fairly present the substance
of his claim to the state courts. Piccard v. Connor, 404 U.S.
270, 275-76 (1971). The exhaustion requirement is not met if the
petitioner presents new legal theories or factual claims in his
federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7
(1982).
Finley cannot return to the Texas courts to cure this
deficiency, however, because the Texas abuse of the writ doctrine
3
We have held that issues raised for the first time
in objections to the report of a magistrate judge are
not properly before the district judge. United State
v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992).
8
prohibits a second habeas petition, absent a showing of cause, if
the petitioner urges grounds therein that could have been, but
were not, raised in his first habeas petition. Nobles, 127 F.3d
at 422-23. Obviously, he could have asserted the newness of his
discovery of the Brady violation in his first habeas petition.
He asserted the violation; he must have known when he learned of
it.
Thus, Texas would bar a second petition by Finley and this
bar represents an additional adequate state procedural ground
which bars federal review of his claim. Fearance v. Scott, 56
F.3d 633, 642 (5th Cir. 1995). If a petitioner fails to exhaust
state remedies, but the court to which he would be required to
return to meet the exhaustion requirement would now find the
claim procedurally barred, then there has been a procedural
default for purposes of federal habeas corpus relief. Sones v.
Hargett, 61 F.3d 410, 416 (5th Cir. 1995), citing Coleman v.
9
Thompson, 501 U.S. 722, 735 n.1 (1991).4 We conclude, therefore,
that Finley has procedurally defaulted his Brady claim.5
B. Miscarriage of Justice
Procedural default of a federal claim in state court bars
federal habeas review of that claim unless the petitioner can
show "cause" for the default and "prejudice" attributable
thereto, Murray v. Carrier, 477 U.S. 478, 485 (1986), or
demonstrate that failure to consider the federal claim will
result in a "fundamental miscarriage of justice." Id. at 495.
The second issue certified to us on appeal is whether, if
4
A procedural default may be excused upon a showing
of cause and prejudice. Fisher v. Texas, 169 F.3d 295,
301 (5th Cir. 1999). Although the issue of cause is
not before us, we note that none of Finley’s pleadings,
whether in state or federal court, advance the theory
that he did not raise this issue on direct appeal of
his conviction because the existence of the undisclosed
evidence was not known, nor could it have been known,
at the time that he could have appealed. Thus, Finley
has failed to show cause for his procedural default and
a second state habeas petition raising this argument
would be barred by Texas as an abuse of the writ.
Sones, 61 F.3d at 416.
5
Nor can Finley return to Texas to collaterally
attack his conviction on the grounds of ineffective
assistance of counsel. Not only would such a petition
be barred as successive since these grounds could have
been raised in the first petition, but relief on the
merits would be denied since there is no constitutional
right to counsel in state collateral proceedings.
Coleman, 501 U.S. at 752.
10
Finley’s Brady claim has been procedurally defaulted, as we have
found that it has, a fundamental miscarriage of justice will
occur.
The fundamental miscarriage of justice exception to the rule
that state procedural default bars federal habeas review is
limited to cases where the petitioner can make a persuasive
showing that he is actually innocent of the charges against him.
See Coleman, 501 U.S. at 750; Ward v. Cain, 53 F.3d 106, 108 (5th
Cir. 1995). Essentially, the petitioner must show that, as a
factual matter, he did not commit the crime for which he was
convicted. Fairman, 188 F.3d at 644.
The government argued and the district court concluded that
Finley is unable to meet this requirement because he has never
denied that he abducted Towery. The district court reasoned that
merely showing facts which supported a defense of necessity which
the jury might or might not have accepted does not meet the
requirement for a showing of “actual innocence” because there is
no claim that the defendant did not actually commit the acts of
which he is accused.
This is a troublesome proposition. Finley’s defense was
that, although he committed the acts alleged against him, he was
innocent of the crime of kidnapping because he reasonably
believed his acts were immediately necessary to avoid imminent
11
harm to Towery’s wife and daughter.6 Under these circumstances,
the district court’s conclusion that Finley cannot show “actual
innocence” seems a too restrictive interpretation of the
requirement. The purpose of the exception is to prevent a
miscarriage of justice by the conviction of someone who is
entitled to be acquitted because “he did not commit the crime of
conviction.” Fairman, 188 F.3d at 644.
“To establish the requisite probability that he was
actually innocent, the petitioner must support his allegations
with new, reliable evidence that was not presented at trial and
show that it was ‘more likely than not that no reasonable juror
would have convicted him in the light of the new evidence.’”
Fairman, 188 F.3d at 644, quoting Schlup v. Delo, 513 U.S. 298
(1995). In Fairman, the petitioner’s claim of self-defense at
trial was supported years later by an eyewitness who recanted his
earlier trial testimony to the contrary. Id. We held that the
petitioner had satisfied the Ward threshold for showing actual
6
Pursuant to the Texas Penal Code § 9.22
(Necessity), conduct is justified if “(1) the actor
reasonably relieves the conduct is immediately
necessary to avoid imminent harm; (2) the desirability
and urgency of avoiding the harm clearly outweigh,
according to ordinary standards of reasonableness, the
harm sought to be prevented by the law proscribing the
conduct; and (3) a legislative purpose to exclude the
justification claimed for the conduct does not
otherwise plainly appear . . . .”
12
innocence because “belief in [the eyewitness] testimony confirms
[the petitioner’s] claim of self-defense such that it was not
just possible but more likely than not that no reasonable juror
would have convicted him.” Id. at 645.
In this case, Finley has pointed to new evidence which is
both undisputed and highly probative of his affirmative defense
of necessity. While knowledge of the restraining order would
not have required the jury to accept this affirmative defense, it
would have significantly bolstered Finley’s necessity defense and
would have undermined the prosecutor’s ability to argue that
there was “no way” that Towery posed any immediate threat to his
family on the day Finley left him for police to find. Finley’s
new evidence confirms his claim of necessity and it is not just
possible but more likely than not that no reasonable juror would
have convicted him. We conclude that a showing of facts which
are highly probative of an affirmative defense which if accepted
by a jury would result in the defendant’s acquittal constitutes a
sufficient showing of “actual innocence” to exempt a Brady claim
from the bar of procedural default.
The question then becomes whether Finley has made such a
showing. We believe that he has. At trial, Finley claimed his
conduct was not culpable because it was immediately necessary to
protect Towery’s wife and daughter. The prosecutor responded to
this claim with the following argument:
13
You must find that it was immediately necessary for Jay
Finley to do what he did. It wasn't immediate. There
is no such defense, he's got no defense, and he's
guilty. How in the world was this child in immediate
danger or Martha Towery in immediate danger when they
were miles away and Louis Towery had no means of
transportation? No way. That's right. No way in the
world.
Yet, the same prosecutor had represented to the court, only
two days after the alleged kidnapping, that Towery must be
restrained from contact with his wife and daughter because he had
committed violence against them and there was a clear and present
danger of more violence which would cause “immediate and
irreparable injury, loss, and damage.” The supporting affidavit
of Martha Towery stated that her daughter Erika was “scared to
death” of Towery and feared that he would continue to molest her
if he were allowed to remain in the house.
If the jury had heard this evidence, there is at least a
reasonable probability that they would have rejected the
prosecutor’s argument that there was “no way in the world” that
Towery’s wife and daughter were in any immediate danger the day
Finley abducted him and took him to the police station. Under
these circumstances, we hold that Finley has made out a
sufficient showing of “actual innocence” to satisfy the
fundamental miscarriage of justice exception for his procedurally
defaulted Brady claim.
III.
14
Finley failed to exhaust his Brady claim in the state courts
and he is now procedurally barred from doing so there. This bar
also operates to prevent federal habeas review of this claim. He
has made a sufficient showing, however, that application of this
bar under the circumstances of this case would result in a
miscarriage of justice. Accordingly, we affirm the judgment of
the district court that Finley’s Brady claim is barred from
federal habeas review, but grant relief from this bar on the
grounds that application of it to this case would result in a
miscarriage of justice. The judgment of the district court is
REVERSED and this case is remanded to the district court for
consideration of Finley’s Brady claim on the merits.
15