PUBLISHED



# UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT



#  D ARICK D EMORRIS W ALKER , Petitioner-Appellant,

v. No. 08-11



# 

L ORETTA 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 OFTHE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Craig Goldblatt, HeatherM. 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 ATTORNEYGENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

OPINION

TRAXLER, Chief Judge:

Darick Demorris Walker was convicted of capital murderin 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.

**1** The 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 W ALKERv. KELLYI.

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 breakinto 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’sapartment. According to the Ernst Report, the shooting commenced a few moments later.

The second piece of evidence at issue is a handwritten notefrom 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 thatit was Todd’s." J.A. 1112. Detective Mullins’s notes, however, were based not on information he gleaned first-hand but

**2** Walker claimed that the prosecution also violated Brady by failing todisclose 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. 3

W ALKERv. KELLYon 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 thenight 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

**3** The 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 W ALKERv. KELLYbasis 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 defaultand 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 causeand prejudice. Specifically, Walker argued that the impeach**4** A 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. 5

W ALKERv. KELLYment evidence remained undisclosed for months after hisdirect 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 totrial 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 showcause for his procedural default as a result of governmental interference.

J.A. 599. Having concluded that Walker failed to establishcause, the district court did not address the prejudice compo6 W ALKERv. KELLYnent. **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 trialthe defense received a Presentence Report referencing two undisclosed police reports containing thesame information as the [alleged undisclosed evidence]. This Presentence Report, by referencingthese 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

**5** Walker 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 courtaddressed 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. 7

W ALKERv. KELLYthe 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 notdiminish 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 majorityconcluded 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

**6** Although 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 W ALKERv. KELLYsuch 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, Norristurned 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. 9 W ALKERv. KELLYFinally, 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 evidentiaryhearing, 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 Biancaadvised me that she did see the shooter." J.A. 875. Furthermore, Hickman testified that Bianca provided a physicaldescription 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 nightas 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 W ALKERv. KELLYFinally, 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 sheactually witnessed the shooting of her father. Hickman testified that he did not have access to his notes at the time hesigned 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 identifiedWalker 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. 11

W ALKERv. KELLYNext, 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 ornot they were in the file or whether she turned this information over to the defense. However, Robinson stated that "[i]fI 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 presentedthe 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 neverreceived 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 Bradymaterial 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 bythe State, either willfully or inadvertently"). Without address12 W ALKERv. KELLYing 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 factualdetermination 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 thedocuments were not disclosed by the State. However, this ignores the affirmative evidence offered by Respondent that the Commonwealth Attorney’sOffice 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 notsee 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 13 W ALKERv. KELLYattempted 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 evidenceat 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 ofPetitioner as the man who shot her father. Furthermore, Bianca’s mother testified at trial that Bianca argued with Petitioner after he entered the apartmentbut 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 ofthe 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 W ALKERv. KELLYand 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 establishesthe 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 tothe 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 15 W ALKERv. KELLYviolation 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 demonstratedcause and prejudice, it necessarily concluded that he simultaneously established the corresponding Brady elements—thatthe 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 W ALKERv. KELLYdefault 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 couldnot 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 waswhether 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 stillinvolved an appeal from an order granting the Commonwealth’s motion to dismiss for procedural default. Thus, the Walker IIpanel 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 17 W ALKERv. KELLYthat, 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. Bankswas 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 itsanswer 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.3d231, 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 W ALKERv. KELLYIn 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 (internalquotation marks omitted). Here, the district court was presented with a substantial amount of material from the recordof 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 federalcourt 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 forwardwith 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 19 W ALKERv. KELLYa merits determination that the Commonwealth committed a Brady violation, and the second presumes that Walker II ’sconclusions 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 thatthe 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 W ALKERv. KELLYvoice 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 shetold 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 thecontrast 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 21 W ALKERv. KELLYvoice, 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 Bradyelements, 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 affirmthe 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 habeascounsel. 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 positionthat "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 W ALKERv. KELLYhad 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, thecourt 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 23 W ALKERv. KELLYat 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, shehad the Medical Examiner’s report which contained a statement that "[w]itnesses inside the home heard the shots but didnot 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 courtproperly determined that Walker failed to prove by a prepon**7** 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 W ALKERv. KELLYderance 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 , 473U.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 priororal statement unless the witness has subscribed to or otherwise adopted the statement as his own."). Walker’s defenseteam 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 25 W ALKERv. KELLYsaw 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 thatBianca 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 evidencethat 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 therecord 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 favorableto 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 W ALKERv. KELLYthe 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), theSupreme 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 developfacts 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. 27

W ALKERv. KELLYId.

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’xat 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 causeand 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 Bradyclaim). 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 violationoccurred 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 W ALKERv. KELLYThe 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], eitherbecause 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 [herfather’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 IIcorrectly 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 JudgeFloyd’s majority opinion. Judge Floyd simply found an evidentiary hearing to be appropriate, providing the Governmentwith 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. 29

W ALKERv. KELLYAt oral argument before this Court, the Warden repeatedlyasserted 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 IIconclusively 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 centralityof 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, theCourt’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 thedeterminations by the majority opinion necessarily meant that the favora30 W ALKERv. KELLYheld 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, wewere 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 todismiss 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). 31

W ALKERv. KELLYstandard 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 toquestions 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 letterand spirit of the . . . mandate, taking into account [our] opin32 W ALKERv. KELLYion 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," 195Fed. 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 necessarilyimplied 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 33 W ALKERv. KELLYas 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.2d1071, 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 IIwas dispositive of Walker’s Brady claim, the district court erred in refusing to grant summary judgment in favor of Walker and ultimately denyinghis 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 districtcourt 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 theevidentiary 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 thedistrict 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 W ALKERv. KELLYthere 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 thatthe 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 theevidence 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 Courtshould 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 Bradyclaim. I would, accordingly, reverse the decision of the district court and remand with instructions to issue the writ of 35 W ALKERv. KELLYhabeas 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 W ALKERv. KELLY