1 United States Court of Appeals

Fifth Circuit



## FILED

November 13, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 02-41416

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ANTHONY GRAVES,

Petitioner - Appellant,

VERSUS

JANIE COCKRELL, Director,

Texas Department of Criminal Justice, Institutional Division,

Respondent - Appellee.

Appeal from the United States District Court

for the Southern District of Texas, Galveston Division

ON PETITION FOR REHEARING

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

On reflection and after further review of the record, the petition for rehearing persuades us

that Graves has made a substantial showing of the denial of a constitutional right on his claim that the

state violated the rul e under B rady v. Maryland

, 83 S. Ct. 1194 (1963), by failing to disclose that

Graves’ co-defendant, Carter, implicated his wife as a participant in the commission of the murders

to the prosecution in an interview the evening before Carter testified in Graves’ capital murder trial.

The sequence and substance of Carter ’s st at ement s and recantations the night before he1 The state had Carter testify to this agreement in his direct testimony.

2 testified are less than clear . On t he evening before he testified in Graves’ capital murder trial, the

prosecutor interrogated Carter and had him take a polygraph test. Carter apparently changed his

story about the mur ders and who was involved several times. In the original opinion, we granted

COA on Graves’ claim under Brady that the state failed to disclose to Graves that Carter had

informed the district attorney in this session that Graves was not involved in the charged crime.

Du ring t he same interrogation, Carter also implicated his wife in the murders. It appears that

statement is the only time he did so. As described by the prosecutor at Graves’ first habeas hearing,

“[A]fter he failed the polygraph here, he broke down and acknowledged that it was he, Graves and

Cookie, the three of them. Specifically, she had the hammer, he had the gun, and Graves had the

knife, and he told us that. But then, to get him to testify , we have to agree, and that’s part of the

record, that we wouldn’t question about that third; i.e., Cookie.” 1 In the original o pinion, we

concluded that Graves’ Brady claim, predicated on Carter’s statem ent implicating his wife, was

pro cedurally barred. We also concluded that even if Graves could overcome the procedural bar,

Carter’s statement that his wife was an accomplice at the scene of the murders was not exculpatory

or material.

After further consideration and review of the record, we are persuaded that reasonable jurists

would find de bat able the district court’s ruling that Graves’ claim was procedurally barred. The

prosecution’s reference to Carter’s statement about his wife before he testified was so vague that it

may not have put Graves’ counsel on notice sufficient to cause counsel to make an inquiry that would

likely lead to full disclosure of Carter’s alleged statement implicat ing his wife in the actual commission2 We do not preclude the state from producing additional evidence tending t o show that

Graves’ counsel was given additional information that put counsel on notice of this statement.

3 of the murders. 2 Before Carter testified, the prosecutor did not disclose that Carter implicated his

wife in the murders. He disclosed only that “Mr. Carter took a polygraph and the basic questio n

involved his wife, Theresa. It shows deception on that polygraph examination.” Although Theresa

(also called Cookie) had been indicted, the state’s position was that she was involved after the fact.

As discussed above, Carter’s statement that is at issue here allegedly placed her at the scene with one

of the murder weapons.

On re flect ion, we also find that jurists of reason would find it debatable whether Graves’

petition alleging non-disclosure of this statement states a valid claim of the denial of a constitutional

right under Brady because a fact finder could conclude that this information was potentially material

and exculpatory. Carter’s statement that Cookie was at the murder scene could have been important

to Graves’ defense because the state’s theory was that the c o mmissio n of the multiple murders

required at least two perpetrators. If Graves had been furnished wit h Carter’s statement, it could

have provided him with an argument that those two persons were Carter and his wife rather than

Carter and Graves. The st at ement could have also been strong impeachment evidence especially

when considered in conjunction with the fact that Carter’s agreement to testify against Graves was

conditioned on a deal that the prosecutor would not ask any questions about his wife’s involvement.

The alleged statement exonerating Graves and the alleged statement implicating his wife as

well as the promise by the state not to question Carter about his wife’s participation were made in

the same interrogation the evening before Carter testif i ed in Graves’ capital murder trial. This

information could have provided a basis for a defense argument that Carter’s desire to exonerate his4

wife motivated him to falsely implicate Graves in return for the state’s promise to refrain from asking

about his wife’s participation in the crime. These statements are so clo sely tied together that the

district court should consider on remand the combined effect of the state’s failure to disclose both

alleged statements on Graves’ trial.

Accordingly, we grant in part the petition for panel rehearing and grant COA on Graves’

claim that the state’s failure to disclose Carter’s alleged statement implicating his wife in the crimes

violated Graves’ rights under Brady

. We deny the petition for rehearing in all other respects. We

therefore remand t his case t o t he district court for an evidentiary hearing to determine: (l) the

substance of the alleged st at ement described above, along with Carter’s statement allegedlly

exonerating Graves; (2) whether Graves was aware of these statements or exercised due diligence

to discover these statements; (3) whether the state’s failure to disclose these statements was material

to Graves’ defense under Brady; and (4) for a determination of whether Graves is entitled to relief

on these claims.

No member of the panel nor judge in regular active service of the court having requested that

the court be polled o n Rehearing En Banc (Fed. R. App. P. And 4 t h Cir. R. 35), the Petition for

Rehearing En Banc is DENIED.

Petition for panel rehearing is DENIED in part; GRANTED in part; REMANDED.

Petition for en banc rehearing is DENIED.