PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DARICK DEMORRIS WALKER, 

Petitioner-Appellant,

v.  No. 08-11

LORETTA K. KELLY, Warden,

Sussex I State Prison,

Respondent-Appellee. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Senior District Judge.

(1:01-cv-01196-CMH-TCB)

Argued: September 22, 2009

Decided: December 16, 2009

Before TRAXLER, Chief Judge, and GREGORY and

SHEDD, Circuit Judges.

Affirmed by published opinion. Chief Judge Traxler wrote the

majority opinion, in which Judge Shedd joined. Judge

Gregory wrote a dissenting opinion.

COUNSEL

ARGUED: Danielle Spinelli, WILMERHALE, Washington,

D.C., for Appellant. Katherine Baldwin Burnett, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond,

Virginia, for Appellee. ON BRIEF: Craig Goldblatt, Heather

M. Zachary, D. Hien Tran, Annie L. Owens, WILMERHALE, Washington, D.C., for Appellant. Robert F. McDonnell, Attorney General of Virginia, Jerry P. Slonaker, Senior

Assistant Attorney General, OFFICE OF THE ATTORNEY

GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

OPINION

TRAXLER, Chief Judge:

Darick Demorris Walker was convicted of capital murder

in the deaths of Stanley Beale and Clarence Threat and sentenced to death.1

 In this, his fourth appearance before this

court during federal habeas proceedings, Walker challenges

the district court’s order rejecting, after a full evidentiary

hearing, his claim under Brady v. Maryland, 373 U.S. 83

(1963), and denying his application for relief under 28 U.S.C.

§ 2254. Walker contends that this court previously determined

the Commonwealth violated Brady by failing to disclose certain information to Walker’s defense team. See Walker v.

Kelly ("Walker II"), No. 04-22, 195 Fed. Appx. 169 (4th Cir.

May 22, 2006). By conducting an evidentiary hearing and

issuing a decision on the Brady claim, the district court failed,

argues Walker, to adhere to this court’s previous ruling. For

the reasons that follow, we disagree.

1The evidence in this case is thoroughly recounted in the Virginia

Supreme Court’s decision affirming Walker’s conviction and sentence on

direct appeal, see Walker v. Commonwealth, 515 S.E.2d 565, 568-69 (Va.

1999), as well as various decisions from this court during federal habeas

proceedings, see, e.g., Walker v. True ("Walker I"), No. 02-22, 67 Fed.

Appx. 758, 759-61 (4th Cir. May 6, 2003) (per curiam). We will recite the

facts here only to the extent necessary to address the Brady issue presented

to us. 

2 WALKER v. KELLY
I.

A.

Walker contends that the prosecution failed to disclose evidence that would have impeached the trial testimony of

Bianca Taylor, Beale’s daughter and a crucial witness for the

Commonwealth.2 Bianca testified that she saw Walker break

into her family’s apartment and shoot her father, and she identified Walker at trial as the shooter. 

According to Walker, the Commonwealth suppressed four

pieces of evidence that the defense would have used to

impeach Bianca’s eyewitness testimony at trial. First, Walker

alleges that the prosecution failed to disclose a Supplementary

Offense Report from Officer David Ernst (the "Ernst Report")

summarizing his interview of Bianca on the night of the

shooting. The Ernst report does not indicate that Bianca

claimed to have seen her father’s murder. Rather, it notes that,

immediately prior to the shooting, Bianca was on the phone

with Karen Rudolph, who told Bianca that "Todd" – the name

by which Bianca knew Walker – was coming to Bianca’s

apartment. According to the Ernst Report, the shooting commenced a few moments later. 

The second piece of evidence at issue is a handwritten note

from Detective Curtis Mullins, dated the night of the shooting, indicating that "13 [year-]old [Bianca] heard [a] voice

and stated that it sounded like Todd and she was positive that

it was Todd’s." J.A. 1112. Detective Mullins’s notes, however, were based not on information he gleaned first-hand but

2Walker claimed that the prosecution also violated Brady by failing to

disclose evidence that would have impeached the testimony of Commonwealth witnesses Tameria Patterson and Christopher Miller. The state

court rejected this portion of Walker’s Brady claim on the merits. We are

concerned in this appeal only with Walker’s Brady claim as it relates to

Bianca. 

WALKER v. KELLY 3
on information given to him by Officer Ernst and Detective

James Hickman. 

Third, Walker claims the Commonwealth failed to disclose

a Supplementary Report prepared by Detective Mullins (the

"Mullins Report") nearly one month after Beale’s murder,

indicating that Bianca "stated that she recognized the voice of

the subject as a [black male] by the name of Todd or Ty." J.A.

1112. 

Fourth, and finally, Walker asserts that the prosecution

failed to disclose the notes of Detective Hickman from the

night of the shooting. Hickman’s notes reflect that he interviewed Bianca and she identified "Todd" as the killer and

physically described him; however, Hickman’s notes do not

expressly indicate whether or not Bianca saw the shooting

first hand. 

B.

Walker first raised this Brady claim during state habeas

review, having not pursued it on direct appeal. The Supreme

Court of Virginia concluded that Walker’s claim was barred

under Slayton v. Parrigan, 205 S.E.2d 680 (Va. 1974), which

precludes a habeas petitioner from asserting a claim that

"could have been [but was not] raised and adjudicated at . . .

trial and upon his [direct] appeal," id. at 682.3 Therefore,

according to the Virginia Supreme Court, the factual and legal

3The Virginia Supreme court explained as follows: 

[Walker’s] claim I in part alleges that exculpatory evidence

impeaching the testimony of witness Bianca Taylor was withheld

by the Commonwealth in violation of petitioner’s due process

rights as enunciated in Brady v. Maryland, 373 U.S. 83 (1963).

The Court holds that this portion of claim I is procedurally

defaulted by operation of the rule in Slayton v. Parrigan, 215 Va.

27, 205 S.E.2d 80 (1974). 

J.A. 402. 

4 WALKER v. KELLY
basis for Walker’s Brady claim was available to the defense

at the time of Walker’s direct appeal.

Walker then sought relief in federal court under 28 U.S.C.

§ 2254, raising a number of claims, including his Brady claim

that the Commonwealth withheld evidence that would have

impeached Bianca’s credibility. Walker alleged that

"[a]lthough the prosecution’s star witness [Bianca] testified

that she watched Walker shoot her father, it is now clear,

based on evidence the prosecution withheld, that this witness

did not see the shooting or the shooter." J.A. 417. 

The Commonwealth filed a motion to dismiss, arguing that

to the extent Walker’s Brady claim related to the testimony of

Bianca, it had been procedurally defaulted and was thus not

amenable to review by a federal habeas court. Federal habeas

courts are precluded from reviewing any claim that "a state

court has declined to consider [on] its merits on the basis of

an independent and adequate state procedural rule." Bacon v.

Lee, 225 F.3d 470, 476 (4th Cir. 2000); see Coleman v.

Thompson, 501 U.S. 722, 731-32 (1991). Application of the

Slayton procedural bar qualifies as such an adequate and independent state law ground. See Vinson v. True, 436 F.3d 412,

417 (4th Cir. 2005). Review by a federal court is permissible

only if Walker is able to establish cause to excuse the default

and prejudice resulting from the alleged constitutional violation. See Strickler v. Greene, 527 U.S. 263, 282 (1999); Vinson, 436 F.3d at 417.4

Walker did not dispute that his Brady claim was procedurally defaulted, but he argued that he could demonstrate cause

and prejudice. Specifically, Walker argued that the impeach4A federal habeas petitioner may also obtain review of a procedurally

defaulted claim if he shows that the court’s failure to review such a claim

will result in a fundamental miscarriage of justice. See McCarver v. Lee,

221 F.3d 583, 588 (4th Cir. 2000). Walker has not advanced such a theory.

See Walker I, No. 02-22, 67 Fed. Appx. at 767 n.5. 

WALKER v. KELLY 5
ment evidence remained undisclosed for months after his

direct appeal until state habeas counsel obtained it via a Freedom of Information Act ("FOIA") request. Walker claimed,

therefore, that the Commonwealth’s failure to disclose established cause in that the defense was unable to raise a claim

based on information it did not have. 

The district court rejected Walker’s cause argument, concluding that Walker failed to rebut by clear and convincing

evidence the state court’s finding that "appellate counsel was

sufficiently on notice of the factual predicate of the [Brady]

claim that it could have been raised on direct review." J.A.

597-98; see 28 U.S.C. § 2254(e)(1). The district court noted

that Walker’s state habeas petition acknowledged that prior to

trial defense counsel received a Presentence Report which referenced two undisclosed police reports suggesting Bianca did

not actually see the shooting. Walker’s state habeas petition,

which included a claim that defense counsel rendered ineffective assistance by failing to raise the Brady issue, also alleged

that the defense received a Report of Autopsy prior to trial

that indicated the witnesses did not see the shooting. Indeed,

Walker’s state habeas petition offered counsel’s notes to demonstrate counsel was aware of reports stating that Bianca did

not see the murder of her father. The district court found that

[t]his evidence in the record establishes that Walker

had knowledge of the factual predicate of his Brady

claim with regard to Bianca’s testimony prior to the

filing of his direct appeal. As a result, Walker has

failed to establish by clear and convincing evidence

that the factual predicate of his claim was not known

to his appellate counsel prior to the filing of his

direct appeal . . . [and] [t]hus, Walker fails to show

cause for his procedural default as a result of governmental interference. 

J.A. 599. Having concluded that Walker failed to establish

cause, the district court did not address the prejudice compo6 WALKER v. KELLY
nent.5

 The district court granted the Commonwealth’s motion

to dismiss on the basis of the pleadings, state court filings and

other documents presented to it—no evidentiary hearing was

conducted. 

On appeal, this court affirmed and held that Walker "was

aware or should have been aware that documents had been

suppressed when he appealed his conviction." Walker I, No.

02-22, 67 Fed. Appx. at 767. We reasoned that because

Walker admitted in his state habeas petition to receiving the

Presentence Report prior to trial, he was unable to rebut the

state court’s determination that he could have raised the

Brady claim on direct appeal: 

Indeed, as Walker admitted . . . , shortly before trial

the defense received a Presentence Report referencing two undisclosed police reports containing the

same information as the [alleged undisclosed evidence]. This Presentence Report, by referencing

these undisclosed documents, evidenced the Commonwealth’s suppression of the alleged Brady material. The factual basis for the assertion of Walker’s

Brady claim, therefore, was available not only before

direct appeal, but before sentencing.

Id. at 767-68 (footnote omitted). We concluded that consideration of actual prejudice was unnecessary in light of Walker’s

failure to establish cause. The Supreme Court subsequently

granted Walker’s petition for a writ of certiorari, vacated this

court’s decision in Walker I, and remanded for this court to

reconsider an ineffective assistance claim that is unrelated to

5Walker also theorized that even if the Commonwealth’s nondisclosure

did not establish cause, counsel’s ineffective assistance in failing to raise

the Brady claim on direct appeal constituted cause. The district court

addressed whether counsel’s performance in this regard resulted in prejudice to Walker; however, Walker’s ineffective assistance claim is not at

issue in this appeal. 

WALKER v. KELLY 7
the current appeal. See Walker v. True, 540 U.S. 1013 (2003).

Following this court’s subsequent decision, see Walker v.

True, 401 F.3d 574 (4th Cir. 2005), the Supreme Court again

granted certiorari and remanded the case to this court for

reconsideration of Walker’s Brady claim in light of Banks v.

Dretke, 540 U.S. 668 (2004). See Walker v. True, 546 U.S.

1086 (2006). 

On remand, a split panel of this court determined that the

facts, when viewed in the light most favorable to Walker as

the nonmoving party, were sufficient to support a finding of

cause and prejudice to overcome the procedural default and to

necessitate a full evidentiary hearing on the merits of the

Brady claim. See Walker II, No. 04-22, 195 Fed. Appx. at

175, 177.6 Noting that the prosecutor confirmed in open court,

prior to trial, that the Commonwealth had provided Walker

with the required discovery, the court concluded that the fact

that "documents in Walker’s possession might suggest that

Bianca provided contradicting statements at trial does not

diminish the reasonableness of Walker’s reliance on the Commonwealth’s representation that it had complied fully with

Brady." Id. at 174. Moreover, we rejected the Commonwealth’s position that "it was unreasonable for Walker to rely

on the prosecution’s affirmative response since Walker could

have reasonably discovered all the information later obtained

by his habeas counsel’s FOIA requests." Id. at 175. Thus, we

held that Walker alleged sufficient facts to establish cause. 

With respect to the prejudice requirement, the majority

concluded that "the lack of forensic or other eyewitness evidence made Bianca’s testimony crucial to the prosecution,"

id. at 176, and that, in turn, the undisclosed impeaching evidence "‘could reasonably be taken to put the whole case in

6Although this opinion was not technically the second decision in the

Walker series of appeals, we designate it for ease of reference as Walker

II to signify that it was the Fourth Circuit’s second decision addressing

Walker’s Brady claim. 

8 WALKER v. KELLY
such a different light as to undermine confidence in the verdict,’" id. at 177 (quoting Kyles v. Whitley, 514 U.S. 419, 435

(1995)). Based on the facts before the panel on the Commonwealth’s motion to dismiss, the majority concluded that

"[w]ithout Bianca’s testimony, the only evidence linking

Walker to the Beale murder is the uncorroborated testimony

of Tameria Patterson that she saw Walker enter the Randolph

apartment and say ‘I shot him.’" Id. The majority concluded

that Walker demonstrated that "prejudice resulted from his

inability to develop the factual basis of his Bianca Brady

claim at trial." Id.

Thus, having reconsidered Walker’s Brady claim in light of

Banks, the Walker II panel concluded that the district court

erroneously granted the Commonwealth’s motion to dismiss

the procedurally defaulted Brady claim. Given the procedural

posture of the appeal, the court essentially held that, accepting

the allegations of Walker’s federal habeas petition as true,

Walker established cause and prejudice to excuse the default.

Therefore, we vacated the order of the district court and we

directed that an evidentiary hearing on the merits be held. See

id.

On remand from this court, the district court referred the

case to the magistrate judge for an evidentiary hearing on the

merits of Walker’s Brady claim. Walker offered testimony

from three witnesses. Rebecca Norris, co-counsel for the

defense during Walker’s 1998 trial, testified that she did not

receive any of the alleged Brady material prior to trial, and

that she would have kept any such documents in her file. And,

she indicated that had lead defense counsel, the late Robert

Johnson, received any such documents, he would have shared

them with her. During the state habeas proceedings, Norris

turned over her files to the Commonwealth Attorney General’s Office and permitted Walker’s habeas counsel an opportunity to duplicate the contents of the file. At the time that

Walker’s trial counsel turned over Walker’s files to habeas

counsel, the Brady material was not contained in the files.

WALKER v. KELLY 9
Finally, Norris testified that none of the information available

to her, including the Presentence Report, led her to believe the

prosecution was withholding exculpatory information.

Walker also put up Tameria Patterson, the witness who testified at trial that Walker entered an apartment she was visiting and stated, "I shot him." J.A. 830. At the evidentiary

hearing, Tameria testified that Bianca told her that she recognized the shooter’s voice while she was in the bathroom, but

that Bianca never indicated whether she actually saw the

shooter. The final witness for Walker, Carolyn Patterson,

essentially confirmed Tameria’s testimony, recalling that

Bianca recognized the shooter’s voice but did not claim to

have seen the shooter.

The Commonwealth called five witnesses. Retired homicide detective James Hickman testified that he interviewed

Bianca on the night of the murder and took handwritten notes.

According to Hickman, he responded to the homicide call and

conducted informal interviews of Bianca and other witnesses.

Hickman described Bianca as "very upset[,] . . . crying, [and]

hysterical." J.A. 847. During the interviews, Hickman took

notes which he turned over to lead detective Curtis Mullins;

Hickman did not prepare a formal report of the interview and

had no further involvement in the case after the night of the

shooting. Although Hickman’s notes did not expressly state

that Bianca saw the shooting, Hickman testified that, to the

best of his recollection, on "that particular night Bianca

advised me that she did see the shooter." J.A. 875. Furthermore, Hickman testified that Bianca provided a physical

description of the shooter. Based on his notes and his independent recollection, Hickman testified that his notes

reflected Bianca’s description of the man she saw that night

as opposed to a description of Walker from memory. Hickman indicated that "[i]f Bianca Taylor had told [me] that, I

didn’t see him, [I would have] reflected that in [my] notes."

J.A. 849. 

10 WALKER v. KELLY
Finally, Hickman clarified two contradictory affidavits he

executed regarding his interview of Bianca. In 2000, after

talking with an investigator employed by Walker, Hickman

signed an affidavit indicating that Bianca did not state that she

actually witnessed the shooting of her father. Hickman testified that he did not have access to his notes at the time he

signed the affidavit. In 2001, Hickman signed a second affidavit after reviewing his notes, which were provided by the

Attorney General’s office. The second Hickman affidavit

indicated that Bianca had, in fact, described the shooter. At

the evidentiary hearing, Hickman testified that the second

affidavit was correct.

David Ernst, a Richmond police officer who responded to

the scene, prepared a Supplemental Offense Report in which

he noted that Bianca stated that, prior to the shooting, she was

talking on the telephone to Ms. Randolph, who told her that

"Todd and Karen are coming to talk to you." J.A. 882. Ernst

did not recall whether Bianca stated that she saw the shooter;

however, he testified that if Bianca had so stated, or if she had

provided a description of the shooter, he would have included

it in his report. Ernst did not speak with Bianca after the night

of the shooting.

Bianca Taylor also testified at the evidentiary hearing.

Bianca was 13 years old at the time of the murder and 15

years old when she testified at Walker’s trial. At the hearing,

she reiterated much of her trial testimony, acknowledging

that, prior to the shooting, she was on the telephone with

Karen Randolph who told Bianca that "we’re coming over."

J.A. 891. Bianca testified unequivocally that she saw Walker

shoot her father, that she had seen him numerous times before

that night, and that she told the detectives that she had seen

Walker shoot her father. Subsequently, Bianca identified

Walker out of a photo lineup presented to her by Officer Mullins, although she knew him as "Todd or Ty" at that time. J.A.

894. 

WALKER v. KELLY 11
Next, Joy Robinson, the lead prosecutor, recalled that she

followed an open file policy in this case, "mak[ing] available

to the defense whatever was in [the] file." J.A. 898. Robinson

testified that the four Brady documents in question looked

familiar, but she could not remember specifically whether or

not they were in the file or whether she turned this information over to the defense. However, Robinson stated that "[i]f

I had it, I did [turn it over]." J.A. 911. Robinson acknowledged that when she reviewed the file after the trial was finished, she noticed that various documents – the motions, in

particular - were missing. According to her testimony, there

was never any evidence that led Robinson to believe that

Bianca identified Walker as the shooter not because she saw

him but only because she recognized his voice.

Finally, Curtis Mullins, the lead detective in the Beale murder, testified that he did not talk to Bianca until he presented

the photographic lineup to her a few months after the shooting. On the night of the shooting, Mullins talked to Bianca’s

mother, Detective Hickman and possibly some other officers.

Mullins’s handwritten notes reflect that Hickman reported

that the "[d]oor was kicked in and victim shot," and that "13-

year old heard voice and stated that it sounded like Todd, and

she was positive that it was Todd’s." J.A. 928. Mullins agreed

that his notes "don’t reflect that [Hickman] told [him] that

[Bianca] . . . said she actually saw the person," id., but he

observed that the notes were not exhaustive. Furthermore,

Mullins testified that, as far as he could recall, he never

received any information suggesting that Bianca did not actually see the shooter.

The magistrate judge found that Walker failed to establish

by a preponderance of the evidence that the alleged Brady

material was not disclosed to the defense by the Commonwealth, and thus that Walker failed to prove the second element of a Brady claim. See Strickler, 527 U.S. at 282

(petitioner must prove that the evidence was "suppressed by

the State, either willfully or inadvertently"). Without address12 WALKER v. KELLY
ing the other two elements, the magistrate judge recommended that the district court deny Walker relief on the Brady

claim. 

The district court agreed with the magistrate judge’s factual

determination that Walker did not establish by a preponderance of the evidence that the Commonwealth suppressed the

alleged Brady material:

Petitioner argues that [defense counsel] Norris’s testimony that she did not recall receiving the four documents at issue ought to satisfy [his] burden that the

documents were not disclosed by the State. However, this ignores the affirmative evidence offered by

Respondent that the Commonwealth Attorney’s

Office had an open file policy, that Robinson testified she gave defense counsel all evidence she possessed related to the case, and that the Pre-Sentence

Report contained information very similar to what

was in [Detective] Mullins’s Report. 

J.A. 1119. The district court adopted the magistrate judge’s

recommended conclusion that Walker failed to establish the

failure-to-disclose element of his Brady claim. 

At the behest of both parties, however, the district court

also addressed the other two Brady elements. The court found

that Walker failed to establish that the evidence allegedly

withheld by the Commonwealth was favorable to him. See

Strickler, 527 U.S. at 281-82. Rejecting Walker’s view that

the evidence in question established Bianca heard but did not

see the shooter, the district court concluded that "[t]he evidence at issue does not affirmatively show that Bianca told

police she only heard the shooter’s voice and did not see

him," as "Hickman’s notes provide a physical description of

the shooter given by Bianca." J.A. 1120. Furthermore, the

court found that, "[b]ased on the evidence presented at the

evidentiary hearing, had Petitioner’s defense counsel

WALKER v. KELLY 13
attempted to use the evidence at issue to impeach Bianca’s

testimony at trial[,] the effect would have been negligible."

J.A. 1120-21.

Finally, the district court determined that the alleged Brady

material was not material to the outcome of Walker’s trial, see

Strickler, 527 U.S. at 282, that is, the evidence in question

"could [not] reasonably be taken to put the whole case in such

a different light as to undermine confidence in the verdict,"

Kyles, 514 U.S. at 435. According to the district court,

[h]ad Petitioner’s defense counsel used the evidence

at issue to challenge Bianca’s testimony that she witnessed the murder, the Commonwealth would have

introduced the uncontroverted evidence presented at

the evidentiary hearing that Bianca knew Petitioner

and had seen him on multiple occasions prior to the

shooting. Such evidence, had it been presented,

would have only bolstered Bianca’s identification of

Petitioner as the man who shot her father. Furthermore, Bianca’s mother testified at trial that Bianca

argued with Petitioner after he entered the apartment

but before shooting Beale. Petitioner never challenged this testimony. Had defense counsel challenged that Bianca actually saw the Petitioner,

Bianca’s mother’s testimony would have rebutted

the claim.

J.A. 1121. Additionally, the court found that the materiality of

the impeachment evidence was undercut by Tameria’s testimony that Walker stated "I shot him" and by evidence "showing that a bullet had been found on the floor of Petitioner’s

apartment that had been loaded into the gun that was used to

shoot Beale." J.A. 1122.

II.

Walker contends that this court resolved the merits of his

Brady claim in Walker II. In holding a full evidentiary hearing

14 WALKER v. KELLY
and issuing its decision on the merits, Walker argues, the district court impermissibly relitigated the Brady issue and violated the law of the case doctrine or, more specifically, the

mandate rule. The law of the case doctrine promotes judicial

economy and finality by providing "‘that when a court

decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same

case.’" United States v. Aramony, 166 F.3d 655, 661 (4th Cir.

1999) (quoting Christianson v. Colt Indus. Operating Corp.,

486 U.S. 800, 816 (1988)). The mandate rule is "merely a specific application" of this doctrine that "forecloses relitigation

of issues expressly or impliedly decided by the appellate

court." United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993)

(internal quotation marks omitted). In short, 

once the decision of an appellate court establishes

the law of the case, it must be followed in all subsequent proceedings in the same case in the trial court

. . . unless: (1) a subsequent trial produces substantially different evidence, (2) controlling authority has

since made a contrary decision of law applicable to

the issue, or (3) the prior decision was clearly erroneous and would work manifest injustice.

United States v. Lentz, 524 F.3d 501, 528 (4th Cir. 2008)

(internal quotation marks omitted). As explained below, we

conclude that Walker II did not hold –- and could not have

held—that Walker was entitled to relief on his Brady claim.

There are three fundamental components to a Brady claim:

(1) "The evidence at issue must be favorable to the accused,

either because it is exculpatory, or because it is impeaching";

(2) the "evidence must have been suppressed by the State";

and (3) the evidence must be material to the defense, that is,

"prejudice must . . . ensue[ ]." Strickler, 527 U.S. at 281-82.

The Supreme Court has explained that the cause and prejudice

showing necessary to overcome a defaulted Brady claim

"‘parallel[s] two of the three components of the alleged Brady

WALKER v. KELLY 15
violation itself.’" Banks, 540 U.S. at 691 (quoting Strickler,

527 U.S. at 282). Thus, the required showing of cause corresponds to the Brady requirement that the petitioner show that

the state suppressed the evidence. See Banks, 540 U.S. at 691

("[A] petitioner shows ‘cause’ when the reason for his failure

to develop facts in state-court proceedings was the State’s

suppression of the relevant evidence . . . ."). The showing of

prejudice required to excuse a procedural default corresponds

to the Brady prejudice requirement. See id. ("[C]oincident

with the third Brady component (prejudice), prejudice within

the compass of the ‘cause and prejudice’ requirement exists

when the suppressed evidence is ‘material’ for Brady purposes.").

Walker’s argument is premised on the interplay between

"cause and prejudice" and the second and third elements of a

Brady claim. His primary focus is on language in Banks stating that "if [petitioner] succeeds in demonstrating ‘cause and

prejudice,’ he will at the same time succeed in establishing

the elements of his . . . Brady . . . claim." Id. (emphasis

added). Based on Banks, Walker contends that when the

Walker II panel concluded that he successfully demonstrated

cause and prejudice, it necessarily concluded that he simultaneously established the corresponding Brady elements—that

the Commonwealth suppressed evidence and that the evidence was material to the defense. As for the remaining Brady

element, Walker argues that Walker II also found that he

established that the evidence in question was favorable. 

Walker misreads the scope of Walker II. First, the majority

opinion did not hold that Walker successfully established that

the Commonwealth either suppressed the evidence at issue or

that the evidence was material. Indeed, the majority made

very clear that Walker’s showing was sufficient to overcome

the procedural default hurdle and to allow him to pursue his

Brady claim:

[W]e hold that Walker has established sufficient

cause and prejudice to overcome the procedural

16 WALKER v. KELLY
default of his Bianca Brady claim and that an evidentiary hearing on the merits of his Bianca Brady

claim is appropriate. Accordingly, the judgment of

the district court is vacated and this case is remanded

for an evidentiary hearing on Walker’s Bianca Brady

claim. 

Walker II, 195 Fed. Appx. at 177 (emphasis added). It could

not be more plain from this language that the panel was making no decision whatsoever with regard to the merits of Walker’s Brady claim except to direct the district court to conduct

an evidentiary hearing so that the merits could then be

decided. The question before this court in Walker I was

whether the district court properly granted the Commonwealth’s motion to dismiss the defaulted Brady claim on the

basis that Walker failed to establish cause and prejudice. The

Supreme Court’s remand for reconsideration in light of Banks

did not change the posture of the case—Walker II still

involved an appeal from an order granting the Commonwealth’s motion to dismiss for procedural default. Thus, the

Walker II panel was tasked with reconsidering whether Walker’s allegations were sufficient to establish cause and prejudice to excuse the default and permit consideration of

Walker’s Brady claim on the merits. Not only did Walker II

not make any factual or legal determinations regarding the

elements of a Brady claim – as Walker suggests – but it

expressly did not reach the merits and limited its analysis to

the procedural default issue. See id. at 175 ("[W]e find that

Walker has established cause such that he may be entitled to

an evidentiary hearing on his Bianca Brady claim.") (emphasis added); id. at 177 ("[W]e find that Walker has established

that actual, significant prejudice resulted from his inability to

develop the factual basis of his Bianca Brady claim at trial.").

Furthermore, we reject Walker’s argument that even if

Walker II did not expressly determine that he established at

least two of the three elements of his Brady claim, then the

Supreme Court effectively did so in Banks when explaining

WALKER v. KELLY 17
that, by establishing cause and prejudice to excuse a procedural default, the petitioner simultaneously established the

requisite Brady elements. See Banks, 540 U.S. at 703. Banks

was decided in light of a record developed through a fullblown evidentiary hearing on the Brady issue. See id. at 684-

86. By contrast, there had been no such evidentiary hearing at

the time Walker II was decided; the matter was before the

Walker II panel on a motion to dismiss. For purposes of the

Commonwealth’s motion to dismiss, the record in Walker II

consisted of the factual allegations set forth in the pleadings

which this court was required to accept as true, along with

documents attached from the state habeas record. There was

no evidence from the Commonwealth, however, regarding

what information was or was not given to defense counsel on

the issues raised. 

In proceedings under § 2254, the familiar standards in Rule

12(b)(6) of the Federal Rules of Civil Procedure apply to the

government’s motion to dismiss. See Walker v. True, 399

F.3d 315, 319 n.1 (4th Cir. 2005); 28 U.S.C. § 2254, Rules

Governing Section 2254 Cases in the United States District

Courts, Rule 11 (incorporating the FRCP "to the extent that

they are not inconsistent with any statutory provisions or

these rules"). Thus, a motion to dismiss a § 2254 petition

under Rule 12(b)(6) tests the legal sufficiency of the petition,

requiring the federal habeas court to "assume all facts pleaded

by the § 2254 petitioner to be true." Wolfe v. Johnson, 565

F.3d 140, 169 (4th Cir. 2009) (internal quotation marks and

alteration omitted). Because the Commonwealth filed its

answer to Walker’s petition and its motion to dismiss simultaneously, it technically should have filed the motion under

Rule 12(c) as one for judgment on the pleadings. See Burbach

Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-

06 (4th Cir. 2002); Edwards v. City of Goldsboro, 178 F.3d

231, 243 (4th Cir. 1999). We will construe the Commonwealth’s motion as a motion under Rule 12(c) which is

assessed under the same standard that applies to a Rule

12(b)(6) motion. See Edwards, 178 F.3d at 243. 

18 WALKER v. KELLY
In assessing whether the § 2254 petition states a claim for

relief, the district court must consider "the face of the petition

and any attached exhibits." Wolfe, 565 F.3d at 169 (internal

quotation marks omitted). Here, the district court was presented with a substantial amount of material from the record

of the state habeas proceeding, including affidavits and evidence presented at trial. A court may consider such materials

without having to convert the Rule 12(b)(6) motion to one for

summary judgment under Rule 56(b). Moreover, a federal

court may consider matters of public record such as documents from prior state court proceedings in conjunction with

a Rule 12(b)(6) motion. See Henson v. CSC Credit Servs., 29

F.3d 280, 284 (7th Cir. 1994). 

We read nothing in Banks that renders the procedural context meaningless. Walker II clearly and expressly held that,

assuming the truth of Walker’s assertions, he came forward

with sufficient evidence to survive the Commonwealth’s dispositive motion and advance his claim for a merits determination. Thus, the district court did precisely what it was

expressly instructed to do –- conduct an evidentiary hearing

on the Brady issue and render a decision on the merits. 

III.

Walker next contends that even if the district court properly

conducted an evidentiary hearing, the evidence developed at

the hearing did not differ materially from the facts before the

court in Walker II. Thus, Walker argues, the district court was

obligated to adhere to this court’s determination in Walker II

that, for purposes of the Commonwealth’s motion to dismiss,

Walker alleged sufficient facts to establish that the prosecution failed to disclose the Brady material and that Walker suffered actual prejudice from the nondisclosure of this evidence.

According to Walker, no additional evidence was adduced

that would cast doubt onto these conclusions. 

We disagree. Walker’s argument appears to rest on a couple of false premises. The first presumes that Walker II made

WALKER v. KELLY 19
a merits determination that the Commonwealth committed a

Brady violation, and the second presumes that Walker II’s

conclusions govern unless "called into question" by new evidence presented at the hearing. The first is false for the reasons explained in detail above. The second is false in that it

suggests the issue before the district court was whether the

Commonwealth produced sufficient additional evidence to

rebut the presumptive Brady violation. Moreover, Walker’s

argument subverts the burden of proof, which belonged to

him on remand. See Garlotte v. Fordice, 515 U.S. 39, 46

(1995). 

The issue before the district court on remand was simply

whether Walker’s proof satisfied the three elements of a

Brady claim. We review the district court’s legal conclusions

de novo and its findings of fact for clear error. See Quesinberry v. Taylor, 162 F.3d 273, 276 (4th Cir. 1998); cf. Monroe

v. Angelone, 323 F.3d 286, 300-01 (4th Cir. 2003) (reviewing

for clear error the district court’s conclusions regarding

whether the habeas evidence established the elements of a

Brady claim). As discussed herein, we conclude that the district court did not clearly err in finding that Walker failed to

prove that the evidence was "suppressed by the State" and that

the district court properly determined that no prejudice "ensued" from the alleged nondisclosure. Strickler, 527 U.S. at

282. 

Favorability of the Items Allegedly Suppressed. 

In order to establish a Brady violation, the evidence suppressed by the state "must be favorable to the accused, either

because it is exculpatory, or because it is impeaching." Id. at

282. As noted previously, the district court concluded that

Walker failed to establish by a preponderance of the evidence

that the items allegedly withheld were favorable to Walker’s

defense. The court explained that 

[t]he evidence at issue does not affirmatively show

that Bianca told police she only heard the shooter’s

20 WALKER v. KELLY
voice and did not see him. Indeed, Hickman’s notes

provide a physical description of the shooter given

by Bianca. Moreover, the evidence presented at the

evidentiary hearing shows that Bianca was hysterical

and emotionally distraught when interviewed by

detectives on the night of her father’s murder. She

has no independent recollection regarding what she

told the detectives . . . Based on the evidence presented at the evidentiary hearing, had [Walker’s]

defense counsel attempted to use the evidence at

issue to impeach Bianca’s testimony at trial the

effect would have been negligible.

J.A. 1120-21. 

Walker contends that the district court applied the wrong

legal standard in determining whether the evidence at issue

was favorable. Specifically, Walker argues that the district

court improperly conflated the issue of whether the alleged

undisclosed evidence was favorable with the separate issue of

whether it was material in light of the record as a whole. See

Kyles, 514 U.S. at 451 (recognizing that the "favorable tendency" of a given piece of evidence should be assessed without regard to the "weight of the evidence" as a whole);

Strickler, 527 U.S. at 282 (concluding that the impeaching

character of the evidence in question was apparent from the

contrast between the witness’s trial testimony and the undisclosed evidence). 

It is somewhat unclear whether the district court based its

conclusion on the effect of the alleged Brady documents on

the trial as a whole in light all the evidence, as opposed to the

impeachment character of the alleged Brady documents, if

any. During the evidentiary hearing, Bianca affirmed the

accuracy of her trial testimony that she heard the front door

being forced open, saw Walker enter and then saw him shoot

her father. She emphatically rejected the suggestion that she

might have told officers that she recognized the shooter by

WALKER v. KELLY 21
voice, not sight, because she "did see him." J.A. 890. Her testimony, however, may go to the weight of the so-called

impeachment evidence rather than its tendency to contradict

the Commonwealth’s star witness. See Kyles, 514 U.S. at 451.

Because the district court’s decision can easily be affirmed

on its disposition of the suppression and materiality Brady

elements, however, we need not determine whether the district court properly concluded that Walker failed to establish

that the evidence was favorable. 

Suppression of the alleged Brady material. 

In arguing that the evidence does not permit us to affirm

the district court’s finding that he failed to prove the Commonwealth suppressed the Brady material, Walker points to

evidence showing that the documents were not in defense

counsel’s files at the time the files were surrendered to habeas

counsel. Indeed, the parties stipulated at the evidentiary hearing "that on the date that Mr. Walker’s habeas counsel

received the files from Mr. Walker’s trial counsel, . . . [the

documents] were not in those files." J.A. 825. The record also

contained an affidavit from Rebecca Norris, Walker’s trial

counsel, indicating that prosecutor Joy Robinson provided the

defense team with Beale’s autopsy report, an offense report,

crime scene photos, and other items; however, Norris indicated that "Robinson never provided any additional information that would have alerted us that it was possible that Bianca

may not have actually seen Walker enter her home." J.A. 581.

At the hearing, Norris testified that she did not "believe" she

received any of the alleged Brady material prior to trial and

that she would have kept them in the file as a matter of course

if she had received them. And, Norris reaffirmed her position

that "Joy Robinson never told [her] that there was any evidence that [Bianca] didn’t see the shooter but only heard his

voice." J.A. 823. Finally, Walker also highlights prosecutor

Robinson’s testimony that she could not recall whether she

22 WALKER v. KELLY
had the Brady materials in her files prior to trial or whether

she specifically disclosed these items to the defense.

Having rejected Walker’s view that Walker II established

binding factual determinations, we review the district court’s

findings under the deferential clear error standard of review:

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 choice between them cannot be clearly

erroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74

(1985)). A district court’s finding of fact is "‘clearly erroneous’ when, although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed."

United States v. Gypsum Co., 333 U.S. 364, 395 (1948). 

Although there is evidence in the record that supports

Walker’s position, the district court’s conclusion is certainly

plausible in light of the evidence as a whole and the allocation

of the burden of proof to Walker. Robinson testified that she

observed an open file policy in the Walker case and that she

"ma[d]e available to the defense whatever was in [her] file."

J.A. 898. According to Robinson, the alleged Brady materials

were items that her office commonly received from the police

department; Robinson typically included in her case file

"whatever the police department had." J.A. 900. For that reason, and because Robinson testified that she was "very familiar" with the alleged Brady documents, Robinson believed

that it was "probable" that she had the items at issue in her

files and that, in turn, she disclosed these items to defense

counsel, as was her custom. Moreover, Robinson reaffirmed

WALKER v. KELLY 23
at the hearing her affidavit testimony suggesting that the attorneys discussed the documents at issue: 

In this case I distinctly recall having a conversation

in my office with one of Walker’s attorneys about

reports that Bianca apparently told police that she

recognized Walker’s voice. I also remember telling

the defense that despite these reports, Bianca had

picked Walker out of a photo . . . lineup.

J.A. 906. 

Norris’s testimony, as well, supports the conclusion that the

district court did not commit clear error in determining that

the Commonwealth turned over these materials to the defense.

For example, Norris testified that the defense files were

incomplete, having once contained "investigatory reports" and

"offense reports." J.A. 802. Norris also admitted that she was

unable to say with certainty that her co-counsel gave her all

of the information in his possession, although Norris did not

believe that co-counsel would have withheld anything from

her. Furthermore, Norris acknowledged that, prior to trial, she

had the Medical Examiner’s report which contained a statement that "[w]itnesses inside the home heard the shots but did

not witness the shooting." J.A. 810. Norris also had the presentence report which incorporated a statement from the Mullins Report that Bianca "recognized the voice of the suspect

as a black male by the name of Todd or Ty." J.A. 820. And,

the record includes Norris’s handwritten, pre-trial notes,

reflecting that she was aware of the information included in

the alleged Brady material.7

In light of the totality of the evidence, the district court

properly determined that Walker failed to prove by a prepon7

In pertinent part, her notes posed the question whether the defense

could "get in[to]" evidence the "Autopsy [which] says no witnesses on

Beale" or the "Offense Rep[or]t [which] says no witnesses." J.A. 1017. 

24 WALKER v. KELLY
derance of evidence that the Commonwealth suppressed the

items at issue. 

Materiality of the suppressed evidence. 

Brady "does not ‘automatically require a new trial whenever a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely

to have changed the verdict.’" Moseley v. Branker, 550 F.3d

312, 318 (4th Cir. 2008) (quoting United States v. Bagley, 473

U.S. 667, 677 (1985)) (internal quotation marks omitted). Evidence is considered material when it "could reasonably be

taken to put the whole case in such a different light as to

undermine confidence in the verdict." Kyles, 514 U.S. at 435.

"The question is not whether the defendant would more likely

than not have received a different verdict with the evidence,

but whether in its absence he received a fair trial, understood

as a trial resulting in a verdict worthy of confidence." Id. at

434. 

A glaring preliminary problem for Walker is that none of

the Brady documents were independently admissible to

impeach Bianca because she did not prepare the documents or

adopt or subscribe to the statements contained therein. See

United States v. Barile, 286 F.3d 749, 757 (4th Cir. 2002)

(noting that "[o]nly prior inconsistent statements made by the

witness are admissible as impeachment evidence") (emphasis

added); United States v. Saget, 991 F.2d 702, 710 (11th Cir.

1993) ("[W]e conclude that a witness may not be impeached

with a third party’s characterization or interpretation of a prior

oral statement unless the witness has subscribed to or otherwise adopted the statement as his own."). Walker’s defense

team would have been forced to call officers Hickman, Mullins, and Ernst as witnesses to testify about their respective

reports and interview notes. Of course, having the benefit of

a full-blown evidentiary hearing after remand, we now know

how these witnesses would have testified. For example,

Detective Hickman testified that Bianca did tell him that she

WALKER v. KELLY 25
saw Walker murder her father even though his notes did not

so reflect. 

Moreover, even if the alleged Brady evidence could be

used to impeach Bianca’s testimony that she saw Walker

shoot her father, there was substantial evidence, as noted by

the district court, that the Commonwealth would have offered

in rebuttal. For example, the evidence is uncontroverted that

Bianca had seen Walker before on many occasions. Moreover, Bianca’s mother testified that Bianca argued with

Walker after he entered the apartment but before he shot

Beale. Tameria Patterson testified that on the night of the

shooting, Walker entered her apartment and stated "I shot

him." Additionally, the Commonwealth presented evidence

that a round of ammunition that had been loaded into the murder weapon was recovered from the floor of Walker’s apartment. 

In light of the evidence presented at the hearing and the

record in its entirety, we conclude that the district court properly determined that, even if Walker were able to show that

the evidence at issue was withheld and that it was favorable

to him, the alleged Brady material does not undermine confidence in the guilty verdict. 

IV.

For the foregoing reasons, the decision of the district court

is affirmed.

AFFIRMED 

GREGORY, Circuit Judge, dissenting:

Today, the majority affirms the district court’s dismissal of

Walker’s Brady claim in this capital case only by departing

from this Court’s prior decision in Walker II, 195 Fed. App’x

169 (4th Cir. 2006). Having heard Walker II, I disagree with

26 WALKER v. KELLY
the majority’s interpretation of the case. This Court’s determinations in Walker II that Walker established cause and prejudice to overcome procedural default were dispositive of

Walker’s Brady claim. Therefore, I respectfully dissent.

I.

It is not Walker, but the majority, that "misreads the scope

of Walker II." (Maj. Op. at 16.) This Court’s decision in

Walker II that Walker had established cause and prejudice to

overcome procedural default meant that he simultaneously

satisfied two of the three components of his Brady claim, and

the Court’s other determinations were necessarily dispositive

of the third component. Therefore, the district court’s decision

to disregard this Court’s prior determinations of law and fact

violated the law of the case doctrine, or more specifically, the

mandate rule.

A.

In Strickler v. Greene, 527 U.S. 263, 282 (1999), the

Supreme Court stated that the elements required to demonstrate procedural default—cause and prejudice—"parallel two

of the three components of the alleged Brady violation itself,"

namely suppression and prejudice. Accord Banks v. Dretke,

540 U.S. 668, 691 (2004). The Banks decision not only reaffirmed the observation laid out in Strickler, but also elaborated on the overlap between these two tests:

Corresponding to the second Brady component (evidence suppressed by the State), a petitioner shows

"cause" when the reason for his failure to develop

facts in state-court proceedings was the State’s suppression of the relevant evidence; coincident with

the third Brady component (prejudice), prejudice

within the compass of the "cause and prejudice"

requirement exists when the suppressed evidence is

"material" for Brady purposes.

WALKER v. KELLY 27
Id.

After finding that Walker established cause and prejudice

to excuse the procedural default of his Brady claim, Judge

Floyd, writing for the majority in Walker II, concluded "that

an evidentiary hearing on the merits of [Walker’s] Bianca

Brady claim is appropriate," and thus remanded the case to

the district court for an evidentiary hearing. 195 Fed. App’x

at 177. As I pointed out in my concurrence, "Walker’s showing of cause and prejudice is not merely sufficient to overcome the procedural default, but also to satisfy the second and

third elements of a Brady claim" and ultimately to establish

a Brady violation. Id. at 179 (Gregory, J., concurring).

As observed in Banks, a defendant who shows cause

and prejudice to excuse a procedural default simultaneously satisfies the second and third elements of a

Brady claim—evidence suppressed by the state and

prejudice, respectively. See Banks, 540 U.S. at 691.

Without question, the first Brady element—the suppressed evidence is favorable to the accused—is satisfied here. See Strickler v. Greene, 527 U.S. 263,

281-82 (1999) (setting forth the elements of a Brady

claim). Indeed, the undisclosed reports contain powerful impeachment material, which calls into question the veracity of Bianca’s testimony. Thus, I

believe that the conclusion that a Brady violation

occurred flows from the finding of cause and prejudice.

Id. (Gregory, J., concurring).

Even the dissent indicated that Judge Floyd’s conclusion as

to Walker’s showing of cause and prejudice "means that

Walker has satisfied two of the three elements of a successful

Brady claim," suppression and prejudice. Id. at 184 n.4 (Williams, J., dissenting).

28 WALKER v. KELLY
The majority therefore remands for the district court

to determine only whether Walker has shown the

third element of a Brady claim; that is, that "the evidence at issue is favorable to [Walker], either

because it is exculpatory or because it is impeaching." Although the majority strangely refrains from

addressing this legal question, its statement that

"[t]he withheld reports provide persuasive evidence

that Bianca did not see the shooter the night of [her

father’s] murder," answers this question in the affirmative. In essence, then, as suggested by Judge

Gregory’s concurrence, the majority opinion results

in an inevitable grant of Walker’s § 2254 petition.

Id. (Williams, J., dissenting) (internal citations omitted).

Thus, both the concurrence and dissent in Walker II correctly noted that, under Strickler and Banks, Judge Floyd’s

majority opinion necessarily meant that Walker had satisfied

the suppression and prejudice components of the Brady claim

itself. See 195 Fed. App’x at 179 (Gregory, J., concurring),

184 n.4 (Williams, J., dissenting). The majority wholly disregards these two opinions, instead altering this Court’s analysis

of the facts when the facts have not changed. While the

majority affords no weight to the clear views of a majority of

the panel members in Walker II on the significance of that

case’s holding, surely it does not question the intent of Judge

Floyd’s majority opinion. Judge Floyd simply found an evidentiary hearing to be appropriate, providing the Government

with an opportunity to produce evidence different on Walker’s Brady claim than what had been shown before this Court.

Indeed, the majority states that "[t]here was no evidence from

the Commonwealth . . . regarding what information was or

was not given to defense counsel on the issues raised." (Maj.

Op. at 18.) Given that no evidence was ultimately presented

that was significantly different from that before this Court in

Walker II, the district court was not free to depart from this

Court’s prior determinations.

WALKER v. KELLY 29
At oral argument before this Court, the Warden repeatedly

asserted that Walker chose to not put evidence on at the evidentiary hearing. This argument is incorrect at best, as Walker

did introduce evidence. The argument also demonstrates the

affront to fairness that has occurred here. Walker proved his

Brady claim before this Court in Walker II. In a light most

generous to the Warden, the evidentiary hearing was granted

either to allow the Government to bring new evidence to light

in order to avoid summary judgment in favor of Walker or to

decide only the issue of favorability. However, the effect of

the majority’s approach in this case is that Walker was forced

to relitigate his claim until the Warden prevailed.

Furthermore, irrespective of the import of the holdings in

Strickler and Banks, the express determinations in Walker II

conclusively establish the suppression and prejudice components of Walker’s Brady claim. With regard to the suppression component, this Court found that "the prosecution failed

to disclose Brady material" when "the Commonwealth knew

of, but failed to disclose, police reports that contain evidence

which challenges the credibility of Bianca Taylor’s alleged

eyewitness testimony." Walker II, 195 Fed. App’x at 172.

With regard to the prejudice component, this Court concluded

that "[g]iven the dearth of physical evidence and the centrality

of Bianca’s testimony, the withheld evidence ‘could reasonably be taken to put the whole case in such a different light

as to undermine confidence in the verdict.’" Id. at 177 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). This conclusion in fact mirrors the governing standard for demonstrating

prejudice for purposes of a Brady violation. See Kyles, 514

U.S. at 435.

While the majority opinion in Walker II did not expressly

state that the third component of the Brady

claim—favorability—had been demonstrated by Walker, the

Court’s findings leave no doubt that the favorability component had been established.* The opinion found that the with-

*Both the concurrence and dissent in Walker II recognized that the

determinations by the majority opinion necessarily meant that the favora30 WALKER v. KELLY
held police reports "contain evidence which challenges the

credibility of Bianca Taylor’s alleged eyewitness testimony,"

195 Fed. App’x at 172, and "provide compelling evidence

suggesting that Bianca never saw the intruder the night of the

murder and that she based her identification of Walker solely

on the intruder’s voice," id. at 173. The opinion concluded:

"As such, the withheld documents would have provided substantial evidence impeaching Bianca’s trial testimony that she

saw the person who shot her father." Id. at 174. According to

Strickler, this type of impeachment evidence is, by definition,

"favorable to the accused" for purposes of proving a Brady

violation. See 527 U.S. at 281-82.

For its part, the majority modifies the previous determinations made by this Court by claiming that in Walker II, we

were merely accepting Walker’s pleadings as true for purposes of determining whether his procedural default was

excused, rather than evaluating the facts as would be done for

purposes of evaluating the Brady claim itself. The majority

even goes so far as to declare that Walker II expressly

assumed the truth of Walker’s assertions. This is plainly not

the case. The opinion in Walker II never made such assumption, explicitly or implicitly. Instead, the Court "[v]iew[ed]

the facts of the case at bar through the lens of Banks." 195

Fed. App’x at 172.

In arriving at its interpretation of Walker II, the majority

conflates the standard a court uses in ruling on a motion to

dismiss with the standard it uses to determine whether a petitioner has put on evidence to overcome procedural default.

The Banks decision is particularly instructive in this regard,

for as in Banks, the lower court here dismissed Walker’s

Brady claim on account of procedural default. See 540 U.S.

at 689, 691. Yet the Banks decision acknowledged that the

bility component had been satisfied. See 195 Fed. App’x at 179 (Gregory,

J., concurring), id. at 184 n.4 (Williams, J., dissenting). 

WALKER v. KELLY 31
standard for showing cause and prejudice to excuse procedural default is the same as that for establishing the underlying Brady claim. See id. at 691 ("[I]f Banks succeeds in

demonstrating ‘cause and prejudice,’ he will at the same time

succeed in establishing the elements of his . . . Brady . . .

claim.") Here, while the district court had not held an evidentiary hearing on the issue of procedural default, we reached

our decision based on evidence beyond the pleadings, including the affidavits of counsel and police officers involved in

the investigation of the Beale murder. Thus, when this Court

"[v]iew[ed] the facts of the case at bar through the lens of

Banks," 195 Fed. App’x at 172, it did not, and indeed could

not, view the facts in the light most favorable to Walker.

B.

Because the majority misinterpreted the effect of this

Court’s findings and conclusions in Walker II on the merits of

Walker’s Brady claim, it failed to determine whether the district court violated the mandate rule by denying Walker’s

motion for summary judgment and holding an evidentiary

hearing on the Brady claim. "Few legal precepts are as firmly

established as the doctrine that the mandate of a higher court

is ‘controlling as to matters within its compass.’" United

States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993) (quoting Sprague

v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939)). According

to Bell, "[b]ecause this mandate rule is merely a specific

application of the law of the case doctrine, in the absence of

exceptional circumstances, it compels compliance on remand

with the dictates of a superior court and forecloses relitigation

of issues expressly or impliedly decided by the appellate

court." Id. (internal quotation marks and citations omitted);

see also Sejman v. Warner-Lambert Co., 845 F.2d 66, 69 (4th

Cir. 1988) ("[T]he [law of the case] doctrine applies both to

questions actually decided as well as to those decided by ‘necessary implication’ . . . ."). Thus, on remand "a district court

must, except in rare circumstances, implement both the letter

and spirit of the . . . mandate, taking into account [our] opin32 WALKER v. KELLY
ion and the circumstances it embraces." Bell, 5 F.3d at 66-67

(alteration in the original) (internal quotation marks and citations omitted). The majority fails to enforce this law.

Even though the majority in Walker II "remanded for an

evidentiary hearing on Walker’s Bianca Brady claim," 195

Fed. App’x at 177, the district court was bound by the findings and conclusions in that opinion, which by necessary

implication required the granting of summary judgment in

favor of Walker. Cf. Volvo Trademark Holding Aktiebolaget

v. Clark Mach. Co., 510 F.3d 474, 481 (4th Cir. 2007) (concluding that this Court’s determination that defendant could

state a claim against plaintiff under a statute necessarily

implied that the statute applied to plaintiff, and thus the district court did not err in refusing to allow plaintiff to argue on

remand that the statute was inapplicable). "A mandate from

[an appellate] court ordering a new trial does not preclude the

district court from entering summary judgment if all of the

appropriate requirements are met." Perlmutter v. U.S. Gypsum

Co., 54 F.3d 659, 662 (10th Cir. 1995) (alteration in the original) (internal quotation marks and citation omitted); Publishers Res., Inc. v. Walker-Davis Pubs., Inc., 762 F.2d 557, 559-

60 (7th Cir. 1985).

Nor are there "exceptional circumstances" in this case that

would compel the district court to disregard our findings and

conclusions. The Fourth Circuit has identified three categories

of exceptional circumstances: "(1) a subsequent trial produces

substantially different evidence, (2) controlling authority has

since made a contrary decision of law applicable to the issue,

or (3) the prior decision was clearly erroneous and would

work manifest injustice." Sejman, 845 F.2d at 69 (internal

quotation marks and citation omitted); accord United States

v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999). The second

and third of these circumstances are plainly inapplicable here,

and thus the only circumstance that could potentially apply is

the first: that the subsequent evidentiary hearing produced

substantially different evidence on Walker’s Brady claim. But

WALKER v. KELLY 33
as other courts have recognized, the "substantially different

evidence" exception "does not apply where a prior appeal has

not left the issue open for decision." Lyons v. Fisher, 888 F.2d

1071, 1075 (5th Cir. 1989) (internal quotation marks and citation omitted); see also United States v. Rivera-Martinez, 931

F.2d 148, 151 (1st Cir. 1991). That is because "[i]f, by the

simple expedient of flaunting the law of the case, a trial court

which should have deferred to an appellate court’s resolution

of an issue could proceed to address the issue anew, then the

doctrine would disappear into thin air." Rivera-Martinez, 931

F.2d at 151.

Because our opinion in Walker II was dispositive of Walker’s Brady claim, the district court erred in refusing to grant

summary judgment in favor of Walker and ultimately denying

his habeas petition. Furthermore, even assuming that the evidence adduced at the evidentiary hearing was "substantially

different" than the record in Walker II, the "substantially different evidence" exception cannot apply because the district

court was foreclosed from relitigating the findings and conclusions of this Court. To reach a different result, the majority

modifies previous determinations by this Court, and I must

dissent on this basis.

II.

Walker alternatively contends that even if the district court

was not strictly bound by the legal determinations of this

Court, the district court nevertheless erred in finding that

Walker had not established his Brady claim. Specifically,

Walker contends that "[t]he factual record developed at the

evidentiary hearing in district court did not differ in any material way from the factual record before this Court when it concluded that the prosecution suppressed material, favorable

evidence." (Petr.’s Br. 38.) Given this, Walker argues that the

district court was not free to come to the opposite legal conclusions as those reached by this Court. The majority dismisses this argument in one brief paragraph, maintaining that

34 WALKER v. KELLY
there was no previous merits determination by this Court and

that Walker’s argument "subverts the burden of proof."

First, as discussed above, there was a previous merits determination by this Court in Walker II on Walker’s Brady claim.

Second, Walker’s argument does not shift the burden of

proof. Rather, Walker simply sets out an application of the

law of the case doctrine, which the majority does not address.

Instead, the majority charts a new course and concludes that

the findings and decision of the district court were fully supported by the record.

In essence, Walker’s argument is a specific application of

the law of the case doctrine. Other circuits, relying on the law

of the case doctrine, have held that a district court is not free

to depart from a circuit court’s legal conclusions where the

evidence developed at the district court level was "substantially similar" to the evidence considered by the circuit court

in a previous appeal. See, e.g., Africa v. City of Philadelphia

(In re City of Philadelphia Litig.), 158 F.3d 711, 720-22 (3d

Cir. 1998); Williams v. City of Dothan, 818 F.2d 755, 757-58

(11th Cir. 1987). Based on the Fourth Circuit’s application of

the law of the case doctrine as I set out above, this Court

should adopt this particular holding as well. Because the evidence before this Court and the district court was "substantially similar" and undoubtedly established all elements of

Walker’s Brady claim, the district court erred in denying

Walker’s habeas petition. In finding otherwise, the majority

advances several arguments which I need not address because

each relies on evidence that was considered and rejected by

this Court in Walker II.

III.

In this case, the district court violated the mandate rule and

erred in its conclusions as to all elements of Walker’s Brady

claim. I would, accordingly, reverse the decision of the district court and remand with instructions to issue the writ of

WALKER v. KELLY 35
habeas corpus and grant Walker a new trial. I am troubled by

the majority’s choice to reject the conclusions previously

made by this Court in Walker II. When, as here, actual innocence is at issue in a capital case involving such scant physical corroboration, justice requires that we adhere to the wellestablished law of the case doctrine and specifically, the mandate rule. Thus, I dissent.

36 WALKER v. KELLY