dissenting.
I dissented with respect to the prior panel opinion in this matter, Harbison v. Bell, 408 F.3d 823 (6th Cir.2005), because the district court improperly failed to grant Harbison’s petition for a writ of habeas corpus on the ground that the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and Harbison had demonstrated cause and actual prejudice for his failure to raise his Brady claim in state court prior to seeking habeas relief in federal court. Despite several court orders compelling disclosure of exculpatory. materials from the Chattanooga Police Department records which indicate that another individual, Ray Harrison, had the motive and opportunity to murder Edith Russell and burglarize her home, the majority in the *571prior panel decision dismissed the materiality of the exculpatory evidence by engaging in the crassest form of speculation in an attempt to minimize the importance of the evidence. Nor did the panel majority adequately explain or justify the withholding of the jail house statements of potential witness, David Schreane, regarding Detective Foster’s, notes concerning. Schre-ane’s motive to falsely implicate Harbison in the murder. Because of the panel majority’s denial of the habeas petition in 2005, Harbison was never accorded sufficient opportunity to demonstrate that Ray Harrison’s wife placed Harrison at the scene of the crime, thereby buttressing Harbison’s alibi defense to the murder charge. As a result, Harbison was effectively prevented from demonstrating his innocence inasmuch as he might have used the suppressed evidence to aid his acquittal by shifting the blame for the murder to Harrison. In other words, the prosecution’s Brady violation denied Harbison the right to present his best possible' defense to the jury. Furthermore, as explained by my prior dissent in this matter, at 408 F.3d at 841, Harbison did not procedurally default his Brady claim or, if he did, such procedural default should have been excused by the showing of cause for the default, and prejudice resulting from the default, as explained in excruciating detail by the aforesaid dissent. The dissent goes to great lengths to explain why there was cause for the procedural default, notwithstanding the purported lack of evidence of deliberate prosecutorial concealment. Consequently, the panel majority’s failure to provide habeas relief based on the Brady claim means that it is entirely possible that Edward Harbison, who was scheduled for execution on September 26, 2007, may be actually innocent of the offense for which he is to be executed.
In order for the majority in the instant appeal, in Case Nos. 06-6474 and 06-6539, to conclude, as it does, that Harbison cannot obtain any relief because he cannot demonstrate that “a newly-discovered factual predicate exists which, if proven, sufficiently establishes that no reasonable fact finder would have found Harbison guilty of the underlying offense but for constitutional error,” the majority has to implicitly rely upon its prior unsupportable and unpersuasive holdings in the prior panel opinion, reported at 408 F.3d 823, to the effect that there was no Brady violation in connection with the state court trial; that there was no improper withholding of evidence that should have been divulged to petitioner; and that petitioner had no justification for failing to come forward with exonerating evidence that he did not know about because it had been concealed or withheld from him. The circular rationale and the illogie of the majority’s application of death penalty jurisprudence in this case operate to defeat the principle of the Brady case that convictions are not to be obtained based upon evidence which is concealed, or not disclosed. In the instant appeal, the majority justifies its inability or unwillingness to grant relief based upon its prior improper determination that Har-bison is not entitled to the protection of the Brady case and therefore concludes that Harbison should not be afforded the opportunity to file a successive habeas petition or be granted a certificate of appeal-ability with respect to Harbison’s Rule 60(b) motion. I therefore respectfully dissent.