United States Court of Appeals,

Eleventh Circuit.

No. 94-8224.

Ellis Wayne FELKER, Petitioner-Appellant,

v.

Albert G. THOMAS, Warden, Respondent-Appellee.

Aug. 9, 1995.

Appeal from the United States District Court for the Middle

District of Georgia. (No. 93-171-3-MAC(WDO), Wilbur D. Owens, Jr.,

Judge.

ON PETITION FOR REHEARING

AND SUGGESTION OF

REHEARING EN BANC

Before BIRCH, BLACK and CARNES, Circuit Judges.

PER CURIAM:

Because no member of this panel nor any other judge in regular

active service on this Court has requested that this Court be

polled about the suggestion of rehearing en banc (Fed.R.App.P. 35;

11th Cir.R. 35-5), that suggestion is denied, as is the petition

for rehearing. However, the initial panel opinion, published at 52

F.3d 907 (11th Cir.1995), is extended as follows:

In his petition for rehearing, Felker argues that we have

failed to give proper deference to the state court factfindings

relating to the Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963), issue. We affirmed the denial of relief as to

the Brady claim on two independently adequate grounds. One was

that Felker had not established, and cannot establish, that the

evidence in question was suppressed, because if that evidence is

true, Felker himself was aware of it before trial. None of the
state court factfindings is in any way inconsistent with that

independently adequate basis for denying relief on the claim.

Felker's arguments about the state court factfindings go only

to our alternative holding that the allegedly suppressed evidence

was immaterial, anyway. Felker, 52 F.3d at 910-11. We stated in

our opinion that Felker's alibi for Wednesday, November 25, 1981,

began when the police arrived at his house, which was at 7:00 p.m.

Id. at 909-10. As Felker points out, one part of the Georgia

Supreme Court's opinion, which did not address the Brady issue,

states that the police arrived at Felker's house that evening at

"approximately 5:30 p.m." Felker v. State, 252 Ga. 351, 314 S.E.2d

621, 627 (1984). We were bound to accept that factfinding as

correct unless we concluded that it is not "fairly supported by the

record." Sumner v. Mata, 449 U.S. 539, 550, 101 S.Ct. 764, 770, 66

L.Ed.2d 722 (1981). That is exactly what we concluded, albeit

implicitly.

Our examination of the record revealed that there were only

three witnesses who testified concerning the time the police

officers arrived at Felker's house on Wednesday, November 25, 1981.

Two were detectives. Detective Pond testified that he was

initially informed about the case at the police station at about

5:30 or 6:00 p.m. that night. He also testified that he did not

have a record of the time that he and detective Upshaw had arrived

at Felker's house, but he thought that it was about 5:30 or 6:00

p.m. that evening. However, when Felker's attorney asked Detective

Pond during cross-examination if it could have been nearer to 7:00

p.m. that evening when they arrived at Felker's house, Detective
Pond testified: "I guess it's a possibility because I can't recall

the exact time." By contrast, Detective Upshaw had no problem

recalling the exact time that he and Detective Pond went to

Felker's house. During cross-examination by Felker's attorney he

testified as follows:

BY MR. HASTY:

Q: Sergeant Upshaw, I believe the night that you did

this investigation, November the 25th, that was

right at seven p.m. you went to Mr. Felker's house?

A: Yes, sir.

Q: And you're positive of the time?

A: Yes, sir. 7:02 to be exact.

Q: 7:02?

A: Yes, sir, because we called it out on the radio,

police radio; went back and checked the log.

The only other witness to testify about the arrival of the

detectives was Felker himself. He stated that he did not know when

the detectives arrived that evening, except that it was after dark.

Having carefully considered all of the evidence on the issue,

we find that the Georgia Supreme Court's statement that the two

officers arrived at Felker's house at approximately 5:30 p.m. on

Wednesday, November 25, 1981, is not "fairly supported by the

record." Instead, it is contradicted by the record, which

establishes that the two officers arrived at Felker's house at 7:02

p.m. that evening.

Even if we accepted the state court's finding that the

detectives arrived at Felker's house between 5:30 p.m. and 6:00

p.m. that evening, the result still would be the same. Nothing

about the timing of the detectives' arrival changes the fact that
 *

Felker also argues that we should have credited the Georgia

Supreme Court's finding concerning the testimony of Dr. Whitaker,

the medical examiner, about when the bruises were inflicted on

the victim. The Georgia Supreme Court said "Dr. Whitaker

concluded that the bruises had been inflicted 4 to 6 hours prior

to death." 314 S.E.2d at 627. Actually, the record reveals that

Dr. Whitaker testified that three of the four bruises on the

victim's body were "fresh," which he said meant that they were

inflicted between zero and four to six hours before death. He

testified that the fourth bruise, which was not fresh, was

probably inflicted four to six hours before death but that "there

is a possibility it could have been 10 years also." Neither Dr.

Whitaker nor any other witness testified that that bruise was

inflicted by the killer.

Moreover, Dr. Whitaker's testimony was evidence that

was presented, not suppressed. The only evidence allegedly

suppressed was evidence tending to show that the victim had

been at a western wear store (with Felker) the Wednesday

afternoon of her death. Dr. Whitaker's testimony concerning

the victim's bruises does not change the fact that Felker

personally knew about the allegedly suppressed evidence, nor

does it change the fact that that evidence would have

directly contradicted Felker's own sworn testimony. 

Accordingly, we need not decide whether the state court's

characterization of Dr. Whitaker's testimony is fairly

supported by the record. 

Felker himself personally knew about the allegedly suppressed

evidence, if it was true, 52 F.3d at 910, nor does the time of

their arrival change the fact that the allegedly suppressed

evidence flatly contradicted Felker's own sworn testimony about

when he was last with the victim, id. at 910-11.*