concurring.
Some of the arguments made in the dissenting opinion deserve, in my view, a brief comment.
1. The statement is made that “[t]he Court today frees James Dean Walker ____” Post, at 962. That is not at all what the Court is doing. We are simply holding that fundamental fairness, embodied in the Due Process Clause of the Fourteenth Amendment, requires a new trial. If Walker is ultimately freed, it will only be because he is acquitted by a jury, assuming that the state does not drop the matter on its own motion, which seems most unlikely.
2. I yield to no one in my conviction that the clearly-erroneous rule of Fed.R. Civ.P. 52 is central to the legitimate exercise of appellate power. The dissent charges that the Court is ignoring findings of fact by the District Court. Again, I must disagree. As our opinion recalling the mandate clearly stated, the District Court’s duty was not to make its own findings of fact, using its own assessment of credibility, as in the ordinary case, but to make the lesser, threshold judgment whether the new evidence was sufficiently credible to deserve the attention of a jury. Except with respect to the Kumpe-Eisner conversation, we are not rejecting the District Court’s findings of fact in the usual sense. Having read every page of the most recent transcript, as well as the earli*962er ones, I have no hesitation in joining the Court’s opinion today.
3. The dissenting opinion quotes my statement in an earlier concurrence, Walker v. Lockhart, 726 F.2d 1238, 1250 (8th Cir.1984) (concurring opinion), to the effect that the bias on the part of the trial judge had not been shown to have done Walker any actual harm that would not have occurred if the case had been tried by another judge. That statement, of course, was made at a time when no newly discovered evidence was in the case. As I also stated in that concurrence, I believe this Court erred in 1969 when it initially rejected the claim of bias. This belief is based not on any assessment of actual prejudice, but rather on the view that everyone, whatever the evidence against him, is entitled to be tried before an impartial judge. Such a trial Walker has never had, and the newly discovered evidence that has now come into the case gives us the power, in order to attain the ends of justice, to reach and decide the bias question anew.
4. Our holding today benefits not only James Dean Walker. It benefits also all the people of Arkansas, who have a vital interest in the honor and fairness of their own courts. Walker, like anyone else accused of crime, should have a fair trial before an impartial judge. Unless and until he receives such a trial, he should not be deprived of his liberty.
With these additional comments, I join the Court’s opinion in its entirety.
JOHN R. GIBSON, Circuit Judge, dissenting, joined by ROSS, FAGG, and BOWMAN, Circuit Judges.The court today frees James Dean Walker essentially on the basis of newly discovered evidence that would have value only to impeach Russell Kumpe. Yet Kumpe was not called to testify by either side at Walker’s trials even though his whereabouts and availability were known. In reaching its conclusions, the court ignores the district court’s finding of fact that the new evidence is not sufficiently credible to deserve the attention of a jury. Rather, viewing the evidence in a light most favorable to Walker, the court engages in wholesale fact-finding on grounds never asserted in his habeas corpus petitions.
I.
First, the court errs in relying on new evidence to set Walker free.1 The Supreme Court held in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), that a claim of newly discovered evidence relevant only to guilt is generally not a ground for habeas relief. To justify granting the writ, “such evidence must bear upon the constitutionality of the applicant’s detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Id. at 317, 83 S.Ct. at 759. No argument is made that the evidence discussed by the court bears upon the constitutionality of Walker’s detention. It plainly has to do with only his guilt. This court applied the rule from Townsend in Drake v. Wyrick, 640 F.2d 912 (8th Cir.1981). In Drake, the petitioner’s newly discovered evidence consisted of a prior inconsistent statement by one of the prosecution’s witnesses. The court held that such evidence did not bear upon the constitutionality of the petitioner’s detention and denied relief under Townsend. Id. at 913. Drake’s argument for . habeas relief presented even a better claim than Walker does because the evidence there allegedly impeached a witness who actually testified at trial. Here, however, the evidence relates only to the statements of a person who did not testify at Walker’s trials. Even if we assume that Kumpe’s tes*963timony is credible and would be admissible in Arkansas state court,2 it does not provide a basis for habeas relief. As the Eleventh Circuit recently held, “newly discovered evidence in the form of a confession by another does not render the conviction void and subject to collateral attack by habeas corpus because it goes to the merits of the conviction, not its legality.” Drake v. Francis, 727 F.2d 990, 994 (11th Cir.1984) (quoting Shaver v. Ellis, 255 F.2d 509, 511 (5th Cir.1958)). Thus, the new evidence does not provide grounds for habeas relief under Townsend.
II.
Second, the court ignores the findings of the district court regarding Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). After discussing the “ends of justice” test, Justice Brennan stated in Sanders:
The principles governing * * * justifications for denial of a hearing on a successive application are addressed to the sound discretion of the federal trial judges. Theirs is the major responsibility for the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits.
Id. at 18, 83 S.Ct. at 1079 (emphasis added). In 1981, Judge Woods found that the ends of justice would not be served by reconsidering Walker’s judicial bias claim. Walker v. Lockhart, 514 F.Supp. 1347, 1353 (E.D.Ark.1981). In 1984, after considering the new evidence, Judge Woods again concluded that reconsideration would not further justice:
I have been directed to determine whether the new evidence, when considered against the background of the existing record, sufficiently tips the balance of the “ends of justice” standard to require that a new trial be held. My answer to this question is strongly in the negative. I believe that the evidence in the hearing before me taken as a whole confirms Walker’s guilt in accordance with the two decisions of the Supreme Court of Arkansas on appeal from jury verdicts of guilt.
Walker v. Lockhart, 598 F.Supp. 1410, 1434 (E.D.Ark.1984). This court directed the district court to make these findings. With only the briefest discussion, it finds that the district court abused its discretion in reaching its conclusions, which are essentially factual.
III.
The foundation for granting the writ is newly discovered evidence: the Kumpe diary and the transcript of a conversation between Kumpe and his sister, Eisner. The only evidentiary value that either of these documents would have would be to impeach Kumpe’s testimony.
Little is to be gained at this late date from a detailed analysis of the voluminous record in this case. Suffice it to say that on the subject of Kumpe’s alleged statements to his then wife, the district court found as follows:
[Tjhere is little or no credible testimony that Kumpe fired a gun on the night in question. * * * Kumpe’s wife came closest to such testimony, but her testimony deserves a great deal of skepticism. She obviously has much animosity toward Kumpe. She admitted shooting Kumpe on one occasion, and Kumpe claimed she tried to kill him on another occasion. Her animosity toward Kumpe is mixed with sympathy and admiration for Walker.
*964598 F.Supp. at 1427-28. As to the diary-entry, the district court found:
If Kumpe wrote this entry exactly as intended and if it reflects the truth, this is the only admissible evidence where Kumpe said he fired a shot on the night in question. Not a single eyewitness has testified that Kumpe fired a shot. In fact, the overwhelming proof is that Kumpe was being searched when the shoot-out between Walker and Vaughan ensued.
Id. at 1428. Regarding the pistol Kumpe claims to have secreted, the district court concluded:
I find no such credible evidence in this record [that Kumpe shot Vaughan], I further find no credible evidence in this record that Kumpe shot at Vaughan. I find very little evidence worthy of belief that Kumpe fired any shot on the night in question. Kumpe has denied under oath that he did so. The only evidence to the contrary appears in a very strange and ambiguous statement in a diary being kept by Kumpe, which has been discussed in detail.
Id. at 1430.
Contrary to these findings, the court today decides that “the diary provides admissible evidence that Kumpe said he fired a shot on the night in question,” supra at 951, and that in the Eisner-Kumpe transcript “Kumpe as much as admitted making the statement that he shot at Vaughan.” Id. at 957. From this interpretation flows the extraordinary finding that the “alleged murder weapon [was] out of Walker’s hand.” Id. at 959. The court concludes:
After carefully reviewing all of the evidence presented at the hearing, we conclude that a significant portion of that evidence bears on the question of Walker’s guilt or innocence, that it would be admissible if a new trial were held, and that it is credible enough to be heard by a jury. * * * Of particular importance is Kumpe’s admission that he owned the gun identified as the murder weapon, and the evidence that Kumpe fired a gun on the night in question, as indicated by the testimony of his former wife, and his own diary entry of January 16, 1968.
Id. at 954-955.
Actions under 28 U.S.C. § 2254 (1982) are civil suits, in which the findings of the district court may be reversed only if clearly erroneous. See Wade v. Mayo, 334 U.S. 672, 683-84, 68 S.Ct. 1270, 1275-76, 92 L.Ed. 1647 (1948). The conclusions above are reached by the court without determining that the district court was clearly erroneous in reaching its findings.3 The court flatly disregards Judge Woods’ finding that no credible evidence indicated that Kumpe shot at Vaughan and that little credible proof showed that Kumpe fired any shot. 598 F.Supp. at 1430. The court’s action flies in the face of principles that recently have been clarified by the Supreme Court. In Anderson v. City of Bessemer City, — U.S. -, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), the Court explained:
[The clearly erroneous] standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52 if it undertakes to duplicate the role of the lower court. ‘In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.’ If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s *965choice between them cannot be clearly erroneous. * * *
This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.
Id. at-, 105 S.Ct. at 1511-12 (citations omitted). In ignoring the findings of the district court and reaching its own factual conclusions, the court blatantly disregards holdings of the Supreme Court.
The court today announces a new test: whether newly discovered evidence is sufficiently credible to deserve the attention of the jury. It relies on no authority for this standard, which seems to be created by the court precisely for this case. As far as I can discover it has no basis in the Constitution, statutes, or opinions of the courts. Whether or not this is a newly minted lower threshold, its essence is a determination of the credibility of evidence, which is singularly the province of the district courts. Without detailed discussion, the court today holds that the district court was clearly erroneous in its finding on this issue.4 The court concludes that the district court went beyond this limited assignment and “seems instead to have made his own assessment of the credibility of the evidence.” The court draws too fine a distinction. Judge Woods has made a determination of credibility and it has not been shown to be clearly erroneous.
IV.
The most troublesome question is whether there was suppression of the KumpeEisner transcript so as to entitle Walker to relief under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The issue is whether the “omitted evidence creates a reasonable doubt that did not otherwise exist.” United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2402, 49 L.Ed.2d 342 (1976). There are at least two reasons why the transcript is not .grounds for relief under Brady. First, it has never been properly authenticated. The district court made the following factual findings concerning the transcript: “It is not authenticated. McDonald testified that it was sent to the State Police by parties unknown sometime in the last ten years. He does not know who took it or how it was taken. * * * [N]o one has attested to its authenticity.” 598 F.Supp. at 1430-31. The court today, however, finds this conclu*966sion clearly erroneous and reasons that “Kumpe’s own testimony, viewed objectively, served to authenticate the transcript.” Supra at 957. It underscores Kumpe’s statement that “since it’s in the document or transcript, I will say that I probably said it then and if I did, I was pressuring my sister to take a little more expedient action.” Id. Nevertheless, the district court interpreted the testimony this way:
Kumpe was shown a document purported to be a transcript of a conversation with his sister. Kumpe would not admit to having made the statements contained therein. (T. 76.) He was asked about a statement, ‘You understand that I did shoot at that policeman.’ (T. 73.) Kumpe said that if he made such a statement, he lied ‘to pressure her into acting with a little more haste.’ (T. 74.) In answer to a question from the court, Kumpe stated that he could not say that he had the conversation set forth in the transcript. He testified that from time to time, when his sister was visiting, he did discuss certain items related in the transcript. (T. 127).
598 F.Supp. at 1420-21. Kumpe testified in person before the district court. When the court today concludes that his testimony establishes the authenticity of a transcript, the critical parts of which he has testified were lies, if said at all, it is engaging in a credibility determination, thereby reaching conclusions directly contrary to the district court’s. Thus, the court again disregards the dictates of Bessemer City, in which the Supreme Court stated:
When findings are based on determinations regarding the credibility of witnesses, Rule 52 demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. * * * Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. * * * But when a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.
— U.S. at-, 105 S.Ct. at 1512-13 (citations omitted).5
Second, the transcript is not material when considered in light of the whole record. The district court found that “the Kumpe-Eisner statement was surreptitiously acquired and not under oath. The only sworn statement given by Kumpe disavows any participation in the actual shooting of Officer Vaughan.” 598 F.Supp. at 1433. The district court also correctly observed that suppressed evidence is less likely to be material if it relates only to impeachment. See Lindhorst v. United States, 658 F.2d 598, 606 (8th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 309 (1982); United States v. Librach, 520 F.2d 550, 554 n. 3 (8th Cir.1975); Link v. United States, 352 F.2d 207, 212 (8th Cir.1965), cert. denied, 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966).6 It concluded that in *967the context of the entire record, the “Kumpe-Eisner statement does not create a reasonable doubt concerning” Walker’s guilt. 598 F.Supp. at 1433. This conclusion may be set aside only if it is clearly erroneous. See United States ex rel. Moore v. Brierton, 560 F.2d 288, 292 (7th Cir.1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1285, 55 L.Ed.2d 794 (1978). The court today concedes that the transcript is susceptible of different interpretations, not all of which are favorable to Walker. The district court’s choice of the views unfavorable to Walker is not clearly erroneous. See Bessemer City, — U.S. at-, 105 S.Ct. at 1511. Thus, the suppression claim must fail on materiality grounds.
y.
The court’s exercise in reviewing the newly discovered evidence issue is merely a springboard to justify a reconsideration of the judicial bias claim.7 The court concludes that newly discovered evidence justifies reconsideration of the bias issue, then immediately determines that the question has been decided by the dissent in the earlier en banc opinion, which found bias in the trial court’s denying Walker a recess to locate witnesses and its rejection of a ballistics report. Supra at 960-961. In reality, the court is reaching this conclusion independent of any findings by a district court.
In the first habeas proceeding Judge Henley rejected Walker’s argument of judicial bias and this finding was unanimously affirmed on appeal. In the second habeas proceeding, Judge Woods refused to consider the claim because he found that Sanders had not been satisfied. Following the recall, Judge Woods did not consider the merits of the bias argument because the new evidence did not concern the issue. Thus, the only district court findings relating to bias in this extensive history are adverse to Walker. Moreover, in an earlier opinion, Judge Arnold wrote that while he believed there was bias on the part of the trial judge, he was not persuaded that it “did Walker any actual harm that would not have occurred if the case had been tried by another judge.” Walker v. Lockhart, 726 F.2d 1238, 1250 (8th Cir.1984) (Arnold, J., concurring). He specifically concluded that the denial of the recess was not crucial and that the ruling on the ballistics report was not to be faulted.
Now the court summarily concludes that bias supports granting the writ. Even without the opinions in the first round of habeas proceedings, the court would be arrogating the role of the district court by making initial factual findings on appeal. See Anderson v. Fuller, 455 U.S. 1028, 1030, 102 S.Ct. 1734, 1735, 72 L.Ed.2d 150 (1982) (Burger, C.J., dissenting). But this zealousness is rendered doubly improper because the court contradicts the earlier district court finding and our prior approval of that finding without any effort to analyze or review these decisions. The court thus seriously abuses its authority in deciding the bias issue.
VI.
The history of the Walker habeas efforts demonstrates the eagerness of the court to find its own facts and to free Walker. The first habeas proceedings, the earlier decision of this court en banc, and the opinion today reflect Walker’s shifting factual claims. From the speculative reexamination of the facts engaged in by the dissent in this court’s earlier en banc consideration, the court today proceeds to discard the district court’s carefully reached findings and to take the most appealing path of finding its own facts. It has no power to do so. The application for a writ of habeas corpus should be denied.
. Granting "the great writ of liberty,” Burns v. Wilson, 346 U.S. 137, 148, 73 S.Ct. 1045, 1052, 97 L.Ed. 1508 (1953) (separate opinion of Frankfurter, J.); Darr v. Burford, 339 U.S. 200, 225, 70 S.Ct. 587, 600, 94 L.Ed. 761 (1950) (Frankfurter, J., dissenting), is equivalent to freeing the petitioner. See Lefkowitz v. Newsome, 420 U.S. 283, 303, 95 S.Ct. 886, 896, 43 L.Ed.2d 196 (1975) (Powell, J., dissenting). While the court's order is conditional, it effectively frees Walker unless the state obtains a third conviction.
. The court observes that "[i]t may be that” Kumpe's diary and other statements “would not be admissible as substantive evidence at a new trial.” Supra at 951. The district court held as a matter of local law that the new evidence could be used only for impeachment. 598 F.Supp. at 1433. This conclusion should not be lightly disregarded. Cf. Kansas State Bank v. Citizens Bank, 737 F.2d 1490, 1496 (8th Cir.1984) (district court’s conclusions of local law entitled to substantial deference). If, however, the evidence is admissible for substantive purposes, Townsend is still controlling, for the new evidence does not have constitutional implications.
. The court explicitly finds the district court clearly erroneous in only two respects, the authenticity of the Eisner-Kumpe transcript and the minimum credibility threshold. See supra at 949 n. 7, 957.
. Any evidence that is relevant and material may be credible enough to be heard by a jury. See Fed.R.Evid. 402. Nevertheless, it does not follow that the discovery of such credible evidence is grounds for a new trial after a jury has returned its verdict, cf. United States v. Agurs, 427 U.S. 97, 111 & n. 19, 96 S.Ct. 2392, 2401 & n. 19, 49 L.Ed.2d 342 (1976) (under Fed.R.Crim.P. 33, newly discovered evidence is not grounds for a new trial unless it "probably would have resulted in acquittal”), or during habeas proceedings. The court would distinguish this case, however, as involving Sanders rather than Rule 33. Such a distinction is unwarranted, as illustrated in Jones v. United States, 279 F.2d 433 (4th Cir.1960). In Jones, two prisoners moved for a new trial on the grounds of newly discovered evidence. The evidence consisted of a confession by a third party that he and an accomplice had committed the crimes for which the defendants had been convicted. The district court denied relief, and the court of appeals affirmed:
Where there is a grave question of the credibility of the after-discovered evidence, * * * the role of the trial judge is that of the fact-finder, so much so that the Supreme Court has said an appeal from his resolution of the facts should be dismissed as frivolous. The rule has been applied where, as here, a third party confession is the after-discovered evidence upon which the motion for new trial is founded.
This remedial procedure, a motion for new trial based upon after-discovered evidence, is designed to serve the ends of justice. * * * That purpose would hardly be served if the law required the trial judge, who heard all the evidence and saw all of the witnesses, to assume that a jury would believe testimonial evidence however improbable and unworthy of belief he finds it to be. If the purpose of the remedy is to be served, without subjecting it to undue abuse, the trial judge who approaches the question of the probable effect of the new evidence upon the result, in the event of a new trial, should be vested with broad discretion in considering matters of credibility as well as of materiality.
Id. at 436 (footnotes omitted). This reasoning and the absence of legal support for the court’s conclusion here strongly suggest that Judge Woods’ findings should not be overturned.
. The court also relies on the Kumpe-Eisner transcript in concluding that the new evidence satisfies the "ends of justice" test. To the extent that the transcript is not authenticated, however, it cannot support relief under that ground either.
. The Supreme Court has never held whether Brady and Agurs apply to evidence admissible only for impeachment purposes. Several courts have decided that these cases do so apply but only upon a more substantial showing of materiality. See United States v. Oxman, 740 F.2d 1298, 1321 (3d Cir.1984) (Sloviter, J., dissenting). Apparently, however, no court has held that impeachment evidence is material under Brady when the witness allegedly impeached did not testify. Kumpe was certainly known to be a direct eyewitness and his whereabouts were known during both the first and the second trials. He was called to testify in neither. The court indeed weaves a gossamer web to grant the writ on the basis of newly discovered impeachment testimony of a witness who could have been called to testify in the trial but was not.
. The purpose of recalling the mandate and remanding the case to the district court was to consider the impact of new evidence. Based on this new evidence, the court now holds that the trial judge's bias deprived Walker of a fair trial. This conclusion does not follow because, as the court concedes, none of the evidence presented at the remand hearing related to the bias claim. Supra at 960.