REVISED 3/27/01

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-40925

 

 

JAY MAYNARD FINLEY,

 

Petitioner-Appellant,

versus 

GARY L. JOHNSON, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

 

 

Appeal from the United States District Court

for the Eastern District of Texas

 

March 8, 2001

HILL*, JOLLY, and BENAVIDES, Circuit Judges. 

* Circuit Judge of the Eleventh Circuit, sitting by designation. 

JAMES C. HILL, Circuit Judge:
1Towery’s daughter testified at trial to his years

of sexual assaulting her. Towery himself testified and

admitted under oath that he held a gun to his

daughter’s head on at least one occasion.

2

Jay Maynard Finley was convicted of aggravated kidnapping in

Texas state court and sentenced to ten years’ imprisonment,

probated for five years; his probation was later revoked and he

was incarcerated. After his appeal and state habeas corpus

petitions were denied, he petitioned for federal relief pursuant

to 28 U.S.C. § 2254. The district court denied the petition as

procedurally barred and this appeal ensued.

I.

Jay Maynard Finley was a city councilman for the City of

Gladewater, Texas. On July 10, 1994, Finley picked up Louis

Towery to take him to see a trailer that Towery wanted to rent. 

On the way, Finley asked Towery if he had been molesting Erika,

Towery’s daughter. Towery denied it. Finley said that the

daughter had told the police that he had. At that point, Towery

became upset and said that "she had run her f**ing head" and that

he was going to have to "get them all." A few minutes later,

Towery commented that he was going to "kill the bitch." After

they arrived at their destination, Finley put a gun to Towery's

side and asked him again whether he had been molesting Erika for

years. Towery then confessed that he had.1
3

Finley bound Towery up with duct tape and took him to the

Gilmer police station. When they arrived, however, Finley became

nervous because he believed that Towery was related to a Gilmer

police sergeant named Ronald Towery. Instead of taking Towery

inside the station, he drove back toward Gladewater and left him

tied to a mailbox near the Union Grove Cemetery. Finley called

the Gladewater Police Department and told them to go pick Towery

up. Towery was released by the police a few minutes later.

At trial, Finley raised the defense of necessity, arguing

that his actions were necessary to protect Towery's wife, Martha,

and Erika from immediate harm. He was, however, convicted of

aggravated kidnapping and was sentenced to ten years confinement,

probated for five years. He filed no notice of appeal.

On October 27, 1995, Finley's probation was revoked, and he

filed a notice of appeal of the revocation that same day. On

November 27, 1995, he filed a motion for a new trial. In each of

these applications for relief, Finley asserted that he was

entitled to a new trial because the prosecution improperly

suppressed exculpatory evidence at trial in violation of Brady v.

Maryland, 373 U.S. 83 (1963). He contended that because he had

filed a pre-trial motion pursuant to Brady, the prosecutor was

required to, but did not, reveal that, two days after the alleged

kidnapping, the prosecutor had secured a restraining order

against Towery based on claims of sexual assault and domestic
2He filed a petition for discretionary review which

was refused by the Texas Court of Criminal Appeals on

November 5, 1997. 

4

violence. In neither of these pleadings, however, did Towery

allege when he learned of this fact.

There was no ruling on Finley’s motion for a new trial and

it was overruled by operation of law after the passage of 75

days. Tex. R. App. P. 21.8(c). His probation revocation appeal

was denied on March 14, 1997, in an unpublished opinion. He

filed an application for a writ of habeas corpus reasserting his

Brady claim, but the Texas Court of Criminal Appeals denied it

without written order on December 9, 1998.2

Finley filed the instant application for federal habeas

relief on February 26, 1999. In it, he reasserts his Brady

claim. On July 12, 1999, the district court adopted the

Magistrate Judge’s Report and Recommendation and held that Finley

has procedurally defaulted federal review of this claim and

dismissed the petition with prejudice. Finley timely filed this

appeal.

In order to obtain a Certificate of Appealability (“COA”)

from the district court, Finley had to make a substantial showing

that he had been denied a federal right. Newby v. Johnson, 81

F.3d 567, 569 (5th Cir. 1996). To do this, he had to demonstrate

that the issues are debatable among jurists of reason, that a

court could resolve the issues in a different manner, or that the
5

questions are adequate to deserve encouragement to proceed

further. James v. Cain, 50 F.3d 1327, 1330 (5th Cir. 1995). The

district court held that he had made such a showing with regard

to whether dismissal of his petition on the grounds of procedural

default might result in a fundamental miscarriage of justice. On

August 23, 1999, it granted him a COA on this issue. 

Finley filed a motion with this court for a COA on the issue

of whether the district court erred in holding that his Brady

claim has been procedurally defaulted. On April 3, 2000, we

certified this additional ground for appeal.

We review the district court's findings of fact on these two

issues for clear error, but conduct a de novo review of its

conclusions of law. Mann v. Scott, 41 F.3d 968, 973 (5th Cir.

1994).

II.

A. Procedural Default

A claim that a state has withheld a federal right from a

person in its custody may not be reviewed by a federal court if

the last state court to consider that claim expressly relied on a

state ground for denial of relief that is both independent of the

merits of the federal claim and an adequate basis for the court's

decision. Coleman v. Thompson, 501 U.S. 722 (1991); Wainwright

v. Sykes, 433 U.S. 72 (1977); Fairman v. Anderson, 188 F.3d 635,

644 (5th Cir. 1999). To satisfy the “independent” and “adequate”
6

requirements, the dismissal must “clearly and expressly” indicate

that it rests on state grounds which bar relief, and the bar must

be strictly or regularly followed by state courts, and applied to

the majority of similar claims. See Amos v. Scott, 61 F.3d 333,

338-39 (5th Cir. 1995). This rule applies to state court

judgments on both substantive and procedural grounds. Id. Where

there has been one reasoned state judgment rejecting a federal

claim, later unexplained orders upholding that judgment or

rejecting the same claim are presumed to rest upon the same

ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). 

The last state court to consider Finley’s Brady claim was

the Texas Court of Criminal Appeals which did not issue a written

opinion when it dismissed his habeas petition. Pursuant to Y1st,

the federal court “looked through” this unexplained decision to

find the last state court which issued a reasoned opinion on the

issue. That court – The Texas Court of Appeals – had before it

Finley’s appeal of his probation revocation. Absent any

allegation that the Brady claim was newly discovered, the court

rejected Finley’s attempt to raise it, holding that all such

claims which could have been raised on direct appeal of his

conviction were barred. See Ex parte Gardner, 959 S.W.2d 189,

199 (Tex. Cr. App. 1996). Furthermore, the court held that the

validity of the original conviction could not be challenged in

the appeal of his probation revocation order. The federal
7

district court interpreted this decision as a holding that

Finley’s Brady claim was procedurally barred from state review. 

The district court held, therefore, that the claim was barred

from federal habeas review as well. See Nobles v. Johnson, 127

F.3d 409, 420 (5th Cir. 1997).

Finley argues that the district court’s interpretation of

the Texas court’s decision is erroneous. He contends that the

Texas Court of Appeals did not hold that his Brady claim was

procedurally defaulted; only that it was without jurisdiction to

hear that claim in the context of an appeal of his probation

revocation. He contends that no Texas court has held that it was

procedurally defaulted. Furthermore, he argues that we should

hold that this claim is cognizable on federal habeas review

because he was unaware of the facts underlying his Brady claim

until long after the time for filing an appeal of his underlying

conviction had expired.

This argument has never been made to a Texas court – not on

direct appeal of his probation revocation, not in his motion for

new trial, not in his petition for discretionary review, not in

his state habeas petition. In fact, the first time this argument

appears in this case is in Finley’s objections to the

magistrate’s report recommending that the district court deny the
3We have held that issues raised for the first time

in objections to the report of a magistrate judge are

not properly before the district judge. United State

v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992). 

8

Brady claim on the grounds of procedural default.3 Such a claim

of newly discovered evidence may well have supported his Brady

claim in his motion for new trial or on state collateral attack,

but it is clear that, absent such an argument in those forums,

Finley’s Brady claim was procedurally barred there since it is

the sort of claim that could have been raised on direct appeal

but was not. Gardner, 959 S.W.2d at 199. If there is a valid

reason why it was not, Finley has never shared that reason with

the state courts. 

Furthermore, since Finley now seeks federal habeas relief

based upon factual allegations that he has never made in the

Texas courts, it is clear that he has failed to exhaust his state

remedies. Nobles, 127 F.3d at 419-20. To exhaust his state

remedies, a habeas petitioner must fairly present the substance

of his claim to the state courts. Piccard v. Connor, 404 U.S.

270, 275-76 (1971). The exhaustion requirement is not met if the

petitioner presents new legal theories or factual claims in his

federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7

(1982).

Finley cannot return to the Texas courts to cure this

deficiency, however, because the Texas abuse of the writ doctrine
9

prohibits a second habeas petition, absent a showing of cause, if

the petitioner urges grounds therein that could have been, but

were not, raised in his first habeas petition. Nobles, 127 F.3d

at 422-23. Obviously, he could have asserted the newness of his

discovery of the Brady violation in his first habeas petition. 

He asserted the violation; he must have known when he learned of

it.

Thus, Texas would bar a second petition by Finley and this

bar represents an additional adequate state procedural ground

which bars federal review of his claim. Fearance v. Scott, 56

F.3d 633, 642 (5th Cir. 1995). If a petitioner fails to exhaust

state remedies, but the court to which he would be required to

return to meet the exhaustion requirement would now find the

claim procedurally barred, then there has been a procedural

default for purposes of federal habeas corpus relief. Sones v.

Hargett, 61 F.3d 410, 416 (5th Cir. 1995), citing Coleman v.
4A procedural default may be excused upon a showing

of cause and prejudice. Fisher v. Texas, 169 F.3d 295,

301 (5th Cir. 1999). Although the issue of cause is

not before us, we note that none of Finley’s pleadings,

whether in state or federal court, advance the theory

that he did not raise this issue on direct appeal of

his conviction because the existence of the undisclosed

evidence was not known, nor could it have been known,

at the time that he could have appealed. Thus, Finley

has failed to show cause for his procedural default and

a second state habeas petition raising this argument

would be barred by Texas as an abuse of the writ. 

Sones, 61 F.3d at 416. 

5Nor can Finley return to Texas to collaterally

attack his conviction on the grounds of ineffective

assistance of counsel. Not only would such a petition

be barred as successive since these grounds could have

been raised in the first petition, but relief on the

merits would be denied since there is no constitutional

right to counsel in state collateral proceedings. 

Coleman, 501 U.S. at 752.

10

Thompson, 501 U.S. 722, 735 n.1 (1991).4 We conclude, therefore,

that Finley has procedurally defaulted his Brady claim.5

B. Miscarriage of Justice

Procedural default of a federal claim in state court bars

federal habeas review of that claim unless the petitioner can

show "cause" for the default and "prejudice" attributable

thereto, Murray v. Carrier, 477 U.S. 478, 485 (1986), or

demonstrate that failure to consider the federal claim will

result in a "fundamental miscarriage of justice." Id. at 495. 

The second issue certified to us on appeal is whether, if
11

Finley’s Brady claim has been procedurally defaulted, as we have

found that it has, a fundamental miscarriage of justice will

occur.

The 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.

See Coleman, 501 U.S. at 750; Ward v. Cain, 53 F.3d 106, 108 (5th

Cir. 1995). Essentially, the petitioner must show that, as a

factual matter, he did not commit the crime for which he was

convicted. Fairman, 188 F.3d at 644. 

The government argued and the district court concluded that

Finley is unable to meet this requirement because he has never

denied that he abducted Towery. The district court reasoned that

merely showing facts which supported a defense of necessity which

the jury might or might not have accepted does not meet the

requirement for a showing of “actual innocence” because there is

no claim that the defendant did not actually commit the acts of

which he is accused.

This is a troublesome proposition. Finley’s defense was

that, although he committed the acts alleged against him, he was

innocent of the crime of kidnapping because he reasonably

believed his acts were immediately necessary to avoid imminent
6Pursuant to the Texas Penal Code § 9.22

(Necessity), conduct is justified if “(1) the actor

reasonably relieves the conduct is immediately

necessary to avoid imminent harm; (2) the desirability

and urgency of avoiding the harm clearly outweigh,

according to ordinary standards of reasonableness, the

harm sought to be prevented by the law proscribing the

conduct; and (3) a legislative purpose to exclude the

justification claimed for the conduct does not

otherwise plainly appear . . . .”

12

harm to Towery’s wife and daughter.6 Under these circumstances,

the district court’s conclusion that Finley cannot show “actual

innocence” seems a too restrictive interpretation of the

requirement. The purpose of the exception is to prevent a

miscarriage of justice by the conviction of someone who is

entitled to be acquitted because “he did not commit the crime of

conviction.” Fairman, 188 F.3d at 644.

 “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.’”

Fairman, 188 F.3d at 644, quoting Schlup v. Delo, 513 U.S. 298

(1995). In Fairman, the petitioner’s claim of self-defense at

trial was supported years later by an eyewitness who recanted his

earlier trial testimony to the contrary. Id. We held that the

petitioner had satisfied the Ward threshold for showing actual
13

innocence because “belief in [the eyewitness] testimony confirms

[the petitioner’s] claim of self-defense such that it was not

just possible but more likely than not that no reasonable juror

would have convicted him.” Id. at 645.

In this case, Finley has pointed to new evidence which is

both undisputed and highly probative of his affirmative defense

of necessity. While knowledge of the restraining order would

not have required the jury to accept this affirmative defense, it

would have significantly bolstered Finley’s necessity defense and

would have undermined the prosecutor’s ability to argue that

there was “no way” that Towery posed any immediate threat to his

family on the day Finley left him for police to find. Finley’s

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

possible but more likely than not that no reasonable juror would

have convicted him. We conclude that a showing of facts which

are highly probative of an affirmative defense which if accepted

by a jury would result in the defendant’s acquittal constitutes a

sufficient showing of “actual innocence” to exempt a Brady claim

from the bar of procedural default.

The question then becomes whether Finley has made such a

showing. We believe that he has. At trial, Finley claimed his

conduct was not culpable because it was immediately necessary to

protect Towery’s wife and daughter. The prosecutor responded to

this claim with the following argument:
14

You must find that it was immediately necessary for Jay

Finley to do what he did. It wasn't immediate. There

is no such defense, he's got no defense, and he's

guilty. How in the world was this child in immediate

danger or Martha Towery in immediate danger when they

were miles away and Louis Towery had no means of

transportation? No way. That's right. No way in the

world.

Yet, the same prosecutor had represented to the court, only

two days after the alleged kidnapping, that Towery must be

restrained from contact with his wife and daughter because he had

committed violence against them and there was a clear and present

danger of more violence which would cause “immediate and

irreparable injury, loss, and damage.” The supporting affidavit

of Martha Towery stated that her daughter Erika was “scared to

death” of Towery and feared that he would continue to molest her

if he were allowed to remain in the house.

If the jury had heard this evidence, there is at least a

reasonable probability that they would have rejected the

prosecutor’s argument that there was “no way in the world” that

Towery’s wife and daughter were in any immediate danger the day

Finley abducted him and took him to the police station. Under

these circumstances, we hold that Finley has made out a

sufficient showing of “actual innocence” to satisfy the

fundamental miscarriage of justice exception for his procedurally

defaulted Brady claim.

III.
15

Finley failed to exhaust his Brady claim in the state courts

and he is now procedurally barred from doing so there. This bar

also operates to prevent federal habeas review of this claim. He

has made a sufficient showing, however, that application of this

bar under the circumstances of this case would result in a

miscarriage of justice. Accordingly, we affirm the judgment of

the district court that Finley’s Brady claim is barred from

federal habeas review, but grant relief from this bar on the

grounds that application of it to this case would result in a

miscarriage of justice. The judgment of the district court is

REVERSED and this case is remanded to the district court for

consideration of Finley’s Brady claim on the merits.