* Judge of the U.S. Court of International Trade, sitting by

designation.

** Pursuant to 5 TH C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-40980

__________________________

JAY MAYNARD FINLEY,

Petitioner-Appellee,

versus

JANIE COCKRELL, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellant.

___________________________________________________

On Appeal from the United States District Court

For the Eastern District of Texas

(Civil Action No. 99-CV-98)

___________________________________________________ October 1, 2002

Before GARWOOD and CLEMENT, Circuit Judges, and RESTANI, Judge. *

PER CURIAM: **

Jay Maynard Finley, a Gladewater city councilman, was

convicted of aggravated kidnapping in May 1995 and sentenced to ten

years of confinement, placed on probation for five years.

Following revocation of his probation in October 1995, Finley filed2

a notice of appeal of the revocation and a motion for a new trial.

Both were denied, as was his state application for habeas relief.

Finley then petitioned for federal relief pursuant to 28 U.S.C. §

2254, asserting that the prosecution suppressed exculpatory

evidence relevant to his necessity defense in violation of Brady v.

Maryland , 373 U.S. 83 (1963). A panel of this Court affirmed the

district court’s judgment that Finley procedurally defaulte d the

Brady claim, but granted relief from the bar on the grounds that

its application would result in a miscarriage of justice. The

panel remanded for “consideration of Finley’s Brady claim on the

merits.” S ee Finley v. Johnson

, 243 F.3d 215, 222 (5th Cir. 2001).

On remand, the district court adopted the magistrate’s report and

recommendation and granted a writ of habeas corpus.

Appellant contests the grant of habeas, claiming that the

district court erred in finding that the prosecution suppressed the

relevant evidence and further that the district court did not fully

consider the Brady claim on the merits. For the reasons given

below, we affirm the district court.

Facts

On July 10, 1994, Louis Towery called Finley to ask for a ride

to James McKinley’s. Finley knew that Towery had been sexually

molesting his daughter Erika Towery for years and that the police

had not taken action when Erika and her mother Martha reported the

abuse. Before picking up Towery, Finley called the chief of police1

The necessity defense states that conduct is justified if “the

actor reasonably believes the conduct is immediately necessary to

avoid imminent harm.” Tex. Penal Code § 9.22(1).

3 and asked if he knew of Erika’s report. When the chief told Finley

that he would check into it on Monday, Finley replied that he

“didn’t have time to wait until then” and that “something [was]

going to have to be done with it.”

While Finley and To wery were driving to McKinley’s, Finley

brought up the alleged molestations. When Finley told Towery that

Erika had talked to the police, Towery became upset and made

comments such as: “she had run her f***ing head” and he was going

to “get them all” and “ kill the bitch.” In McKinley’s house,

Towery confessed to molesting Erika when Finley put a gun to

Towery’s side.

McKinley and Finley bound Towery with duct tape and took him

to the police station in a town neighboring Gladewater. However,

once at the station, they decided not to go in out of concern that

Towery was related to a police sergeant named Ronald Towery.

Instead, they left Towery tied to a mailbox near the Union Grove

Cemetery and called the Gladewater Police Department to report

Towery’s location.

At trial, Finley raised the defense of necessity, 1 arguing

that his acti ons were necessary to protect Towery’s wife and

daughter from immediate harm. Finley testified that Towery always

carried a gun, had taken some pills on the way to McKinley’s house,4

and threatened to kill Martha and Erika. The jury did not find

enough supporting evidence for the necessity defense; however they

ruled without knowledge of a protective order granted to Martha two

days after the incident that led to Finley’s prosecution.

Martha’s applicati on for a protective order against her

husband stated that she “reasonably believe[d] that family violence

ha[d] been committed by Louis Towery and that there [wa]s clear and

present danger of family violence that w[ould] cause the applicant

and others named immediate and irreparable inju ry, loss, and

damage.” The supporting affidavit, which was signed the day after

the incident between Towery and Finley, stated that Erika was

“scared to death” of her father and feared that he would continue

to molest her if allowed to remain in the house. The prosecution

knew of the order; in fact, the district attorney who prosecuted

Finley obtained the protective order. Defense counsel was unaware

of the protective order until after the time for seeking a new

trial had passed; it was not in the state’s files produced to

defense counsel and, in fact, had been placed under seal.

Analysis

Brady v. Maryland

, 373 U.S. 83 (1963), “requires that the

prosecution disclose to the defense both exculpatory evidence and

evidence that would be useful for impeachment. To prevail on [a]

Brady claim, [petitioner] must show that (1) the prosecution

suppressed evidence, (2) the evidence was favorable to the defense,5

and (3) the evidence was material.” Lawrence v. Lensing , 42 F.3d

255, 257 (5th Cir. 1994) (internal citations omit ted) ; s ee

Strickler v. Greene

, 527 U.S. 263, 280 (1999) (“The evidence at

issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must have

been suppressed b y the State, either willfully or inadvertently;

and prejudice must have ensued.”). We review findings of fact for

clear error and issues of law de novo. Dyer v. Johnson , 108 F.3d

607, 609 (5th Cir. 1997).

Suppression of the Protective Order

“A Brady violation does not arise if the defendant, using

reasonable diligence, could have obtained the information.”

Williams v. Scott

, 35 F.3d 159, 163 (5th Cir. 1994) (citing United

States v. Ramirez

, 810 F.2d 1338, 1343 (5th Cir.)). Reasonable

diligence would not have surfaced the protective order. The order

was under seal. The prosecutor admitted that he did not give

Finley a copy of the protective order . He further conceded that

the application for the protective order was not in the file

produced to Finley.

Appellant argues that since Finley knew that Towery had been

convicted of sexual assault and had access to Martha and Erika

Towery, defense counsel should have known of the protective order.

However, defense counsel had no reason to ask about an order of

which he had no knowledge; counsel could only have learned of the6

protective order if Martha or Erika had mentioned it. As the

magistrate court wrote in its report and recommendation adopted by

the district court, “[t]he State’s constitutional duty to disclose

exculpatory evidence is not satisfied by the fact that a nonattorney witness might happen to volunteer evidence about which the

defense knows nothing.” The district court did not err in finding

that the prosecution suppressed the application for the protective

order.

The District Court’s Consideration of the Merits

The second and third components of a Brady claim require that

the suppressed evidence be material and favorable to the defense.

Drew v. Collins

, 964 F.2d 411, 419 (5th Cir.1992). Appellant

claims that the district co urt relied solely on the “law of the

case” doctrine in ruling that the prote ctive order was favorable

and material and did not put the independent analysis into its

decision that this Court’s order to consider “Finley’s Brady claim

on the merits” required. The law of the case doctrine

“precludes reexamination of issues of law or fact decided on

appeal

. . . [and] applies only to issues that were actually

decided

. . . [T]he issues need not have been explicitly

decided; the doctrine also applies to those issues decided by

necessary implication. In other words, even when issues have

not been expressly addressed in a prior decision, if those

matters were fully briefed to the appellate court and . . .

necessary predicates to the [court’s] ability to address the

iss ue or issues specifically discussed, [those issues] are

deemed to have been decided tacitly or implicitly, and their

disposition is law of the case.” A lpha/Omega Ins. Services,

Inc. v. Prudential Ins. Co. of Am.

, 272 F.3d 2 76, 279 (5th

Cir. 2001) (internal citations and quotes omitted).7

Since, as explained below, we find that the district court put

sufficient independent analysis into its ru l ing on the

favorableness and materiality of the evidence, we do not have to

decide whether or not the district court could rely on the law of

the case doctrine. However, it is worth noting that in order to

grant relief fromthe procedural bar on habeas this Court had to

find that a miscarriage of justice would result. A s the panel

stated, “[t]he fundamental miscarriage of justice exception to the

rule that state procedural default bars federal habeas review is

limited to cases where the petitioner can make a persuasive showing

that he is actually innocent of the charges against him.

Essentially, the petitioner must show that, as a factual matter, he

did not commit the crime for which he was convicted.” F inley

, 243

F.3d at 220 (internal citations omitt ed). “ To establish the

requisite probability that he was actually innocent, the petitioner

must support his allegations with new, reliable evidence that was

not presented at trial and show that it was more likely than not

that no reasonable juror would have convicted him in the light of

the new evidence.” F airman v. Anderson , 188 F.3d 635, 644 (5th

Cir. 1999) (internal quote omitted). Material evidence in the

Brady context is evidence that raises "a reasonabl e probability

that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different." U nited States v.

Bagley

, 473 U.S. 667, 680-82 (1985). Putting the B rady and8

miscarriage of justice standards side-by-side reveals that to find

a miscarriage of justice, this Court implicitly found that the

evidence that had surfaced after trial was material and favorable

to the defendant.

However, we do not have to find that the second and third

prongs of Brady were implied in our ruling that relief from the

procedural bar to habeas be grant ed. We remanded “for

c onsideration of Finley’s B rady claim on the merits” and the

d istrict court adequately considered that claim. The district

court confronted appellant’s law of the case doctrine arguments in

its memorandum adopting the magistrate’s report and recommendation

and stated that it had “conducted a careful de novo review of the

pleadings in this case, including the original petition, the answer

of the Respondent, the Petitioner’s response thereto, the testimony

at the evidentiary hearing, the Report of the Magistrate Judge, the

Respondent’s objections thereto, and all records, pleadings , and

filings in the case.” Reading the opinion as a whole and in the

context of the proceedings held, we find that the district court

conducted sufficient independent analysis in finding a B rady

violation. None of the evidence reviewed by the lower court gave

it reason to question this Court’s statements that “Finley has

pointed to new evidence which is both undisputed and highly

probative of his affirmative defense of necessity. [And] Finley’s

new evidence confirms his claim of necessity and it is not just9

possible but more likely than not that no reasonable juror would

have convicted him.” F inley

, 243 F.3d at 221. The district court

did not err in find ing that evidence of the protective order was

material and favorable to the defense.

Conclusion

The district court’s grant of habeas is affirmed.