PUBLISHED

Filed: March 9, 2010

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DARICK DEMORRIS WALKER, 

Petitioner-Appellant,

No. 08-11

v.  (1:01-cv-01196-

LORETTA K. KELLY, Warden, CMH-TCB)

Sussex I State Prison,

Respondent-Appellee. 

O R D E R

In a poll requested by a member of the court on the petition

for rehearing en banc, Judges Michael, Motz, Gregory, and

Davis voted to rehear the case en banc. Chief Judge Traxler

and Judges Wilkinson, Niemeyer, King, Shedd, Duncan, and

Agee voted to deny rehearing en banc. As a majority of the

active circuit judges voted against rehearing en banc and as

the panel voted to deny rehearing, the petition for rehearing

and rehearing en banc is denied.

Judge Gregory wrote an opinion dissenting from the denial

of rehearing en banc.

Entered for the court at the direction of Chief Judge Traxler. 
For the Court

/s/ Patricia S. Connor

Clerk

GREGORY, Circuit Judge, dissenting from the denial of

rehearing en banc: 

In Walker v. Kelly, 195 Fed. App’x 169 (4th Cir. 2006)

("Walker II"), this Court held that Walker established cause

and prejudice to overcome procedural default and thereby

proved a Brady violation. Yet, three years later, a different

panel of this Court reached the opposite conclusion on essentially the same evidence. In reaching its decision, the majority

contravenes decisions of the Supreme Court and undermines

the values of finality and fairness behind the law of the case

doctrine. Although much of my reasoning is set forth in my

dissent from the majority’s opinion, Walker v. Kelly, 589 F.3d

127, 143-48 (4th Cir. 2009), I am compelled to write again

out of concern that a man will be put to death without having

a jury of his peers hear evidence vital to determining his guilt

or innocence. 

The "centerpiece" of the Commonwealth’s 1998 case

against Walker for the murder of Stanley Beale, the offense

that made Walker eligible for capital punishment, was the testimony of thirteen-year-old Bianca Taylor ("Bianca"). Walker

II, 195 Fed. App’x at 176. At trial, Bianca told the jury that

she saw Walker shoot her father, and the Commonwealth

relied heavily on her testimony as the sole "eyewitness." Id.

But, as this Court found in 2006, "the Commonwealth knew

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

which challenges the credibility of Bianca Taylor’s alleged

eyewitness testimony." Id. at 172. The withheld documents

"provide compelling evidence suggesting that Bianca never

saw the intruder the night of the murder and that she based her

2 WALKER v. KELLY
identification of Walker solely on the intruder’s voice." Id. at

173. The jury never heard this impeaching evidence, which

the first panel unequivocally found material to Walker’s guilt

or innocence. 

As compared to every other punishment, "there is no doubt

that ‘death is different.’" Ring v. Arizona, 536 U.S. 584, 605-

06 (2002) (citation omitted); McCleskey v. Kemp, 481 U.S.

279, 340 (1987) (Brennan, J., dissenting) ("It hardly needs

reiteration that this Court has consistently acknowledged the

uniqueness of the punishment of death. . . . ‘Because of that

qualitative difference, there is a corresponding difference in

the need for reliability in the determination that death is the

appropriate punishment.’" (citations omitted)). In this capital

case involving an assertion of actual innocence and scant corroboration of guilt, I strongly believe justice requires that

Walker be able to present the withheld evidence to a jury.

Thus, I respectfully dissent from the Court’s denial of rehearing en banc.

WALKER v. KELLY 3