Walker v. Kelly

• Decision Date: 16 December 2009
• Docket Number: No. 08-11.,08-11.
• Parties: Darick Demorris WALKER, Petitioner-Appellant, v. Loretta K. KELLY, Warden, Sussex I State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

589 F.3d 127

Darick Demorris WALKER, Petitioner-Appellant, v. Loretta K. KELLY, Warden, Sussex I State Prison, Respondent-Appellee.

No. 08-11.

United States Court of Appeals, Fourth Circuit.

Argued: September 22, 2009.

Decided: December 16, 2009.

ARGUED: Danielle Spinelli, Wilmerhale, Washington, D.C., for Appellant. Katherine Baldwin Burnett, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. ON BRIEF: Craig Goldblatt, Heather M. Zachary, D. Hien Tran, Annie L. Owens, Wilmerhale, Washington, D.C., for Appellant. Robert F. McDonnell, Attorney General of Virginia, Jerry P. Slonaker, Senior Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.

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.

OPINION

TRAXLER, Chief Judge:

Darick Demorris Walker was convicted of capital murder in the deaths of Stanley Beale and Clarence Threat and sentenced to death.¹ In this, his fourth appearance before this court during federal habeas proceedings, Walker challenges the district court's order rejecting, after a full evidentiary hearing, his claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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"), 195 Fed. Appx. 169 (4th Cir.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.

I.

A.

Walker contends that the prosecution failed to disclose evidence that would have impeached the trial testimony of Bianca Taylor, Beale's daughter and a crucial witness for the Commonwealth.² Bianca testified that she saw Walker break into her family's apartment and shoot her father, and she identified Walker at trial as the shooter.

According to Walker, the Commonwealth suppressed four pieces of evidence that the defense would have used to impeach Bianca's eyewitness testimony at trial. First, Walker alleges that the prosecution failed to disclose a Supplementary Offense Report from Officer David Ernst (the "Ernst Report") summarizing his interview of Bianca on the night of the shooting. The Ernst report does not indicate that Bianca claimed to have seen her father's murder. Rather, it notes that, immediately prior to the shooting, Bianca was on the phone with Karen Rudolph, who told Bianca that "Todd" — the name by which Bianca knew Walker — was coming to Bianca's apartment. According to the Ernst Report, the shooting commenced a few moments later.

The second piece of evidence at issue is a handwritten note from Detective Curtis Mullins, dated the night of the shooting, indicating that "13 [year-]old [Bianca] heard [a] voice and stated that it sounded like Todd and she was positive that it was Todd's." J.A. 1112. Detective Mullins's notes, however, were based not on information he gleaned first-hand but on information given to him by Officer Ernst and Detective James Hickman.

Third, Walker claims the Commonwealth failed to disclose a Supplementary Report prepared by Detective Mullins (the "Mullins Report") nearly one month after Beale's murder, indicating that Bianca "stated that she recognized the voice of the subject as a [black male] by the name of Todd or Ty." J.A. 1112.

Fourth, and finally, Walker asserts that the prosecution failed to disclose the notes of Detective Hickman from the night of the shooting. Hickman's notes reflect that he interviewed Bianca and she identified "Todd" as the killer and physically described him; however, Hickman's notes do not expressly indicate whether or not Bianca saw the shooting first hand.

B.

Walker first raised this Brady claim during state habeas review, having not pursued it on direct appeal. The Supreme Court of Virginia concluded that Walker's claim was barred under Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (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 basis for Walker's Brady claim was available to the defense at the time of Walker's direct appeal.

Walker then sought relief in federal court under 28 U.S.C. § 2254, raising a number of claims, including his Brady claim that the Commonwealth withheld evidence that would have impeached Bianca's credibility. Walker alleged that "[a]lthough the prosecution's star witness [Bianca] testified that she watched Walker shoot her father, it is now clear, based on evidence the prosecution withheld, that this witness did not see the shooting or the shooter." J.A. 417.

The Commonwealth filed a motion to dismiss, arguing that to the extent Walker's Brady claim related to the testimony of Bianca, it had been procedurally defaulted and was thus not amenable to review by a federal habeas court. Federal habeas courts are precluded from reviewing any claim that "a state court has declined to consider [on] its merits on the basis of an independent and adequate state procedural rule." Bacon v. Lee, 225 F.3d 470, 476 (4th Cir.2000); see Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (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.2006). Review by a federal court is permissible only if Walker is able to establish cause to excuse the default and prejudice resulting from the alleged constitutional violation. See Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Vinson, 436 F.3d at 417.⁴

Walker did not dispute that his Brady claim was procedurally defaulted, but he argued that he could demonstrate cause and prejudice. Specifically, Walker argued that the impeachment evidence remained undisclosed for months after his direct appeal until state habeas counsel obtained it via a Freedom of Information Act ("FOIA") request. Walker claimed, therefore, that the Commonwealth's failure to disclose established cause in that the defense was unable to raise a claim based on information it did not have.

The district court rejected Walker's cause argument, concluding that Walker failed to rebut by clear and convincing evidence the state court's finding that "appellate counsel was sufficiently on notice of the factual predicate of the [Brady] claim that it could have been raised on direct review." J.A. 597-98; see 28 U.S.C. § 2254(e)(1). The district court noted that Walker's state habeas petition acknowledged that prior to trial defense counsel received a Presentence Report which referenced two undisclosed police reports suggesting Bianca did not actually see the shooting. Walker's state habeas petition, which included a claim that defense counsel rendered ineffective assistance by failing to raise the Brady issue, also alleged that the defense received a Report of Autopsy prior to trial that indicated the witnesses did not see the shooting. Indeed, Walker's state habeas petition offered counsel's notes to demonstrate counsel was aware of reports stating that Bianca did not see the murder of her father. The district court found that

[t]his evidence in the record establishes that Walker had knowledge of the factual predicate of his Brady claim with regard to Bianca's testimony prior to the filing of his direct appeal. As a result, Walker has failed to establish by clear and convincing evidence that the factual predicate of his claim was not known to his appellate counsel prior to the filing of his direct appeal . . . [and][t]hus, Walker fails to show cause for his procedural default as a result of governmental interference.

J.A. 599. Having concluded that Walker failed to establish cause, the district court did not address the prejudice component.⁵ The district court granted the Commonwealth's motion to dismiss on the basis of the pleadings, state court filings and other documents presented to it—no evidentiary hearing was conducted.

On appeal, this court affirmed and held that Walker "was aware or should have been aware that documents had been suppressed when he appealed his conviction." Walker I, No. 02-22, 67 Fed.Appx. at 767. We reasoned that because Walker admitted in his state habeas petition to receiving the Presentence Report prior to trial, he was unable to rebut the state court's determination that he could have raised the Brady claim on direct appeal:

Indeed, as Walker admitted . . ., shortly before trial the defense received a Presentence Report referencing two undisclosed police reports containing the same information as the [alleged undisclosed evidence]. This Presentence Report, by referencing these undisclosed documents, evidenced the Commonwealth's suppression of the alleged Brady material. The factual basis for the assertion of Walker's Brady claim therefore, was available not only before direct appeal, but before sentencing.

Id. at 767-68 (footnote omitted). We concluded that consideration of actual prejudice was unnecessary in light of Walker's failure to establish cause. The Supreme Court subsequently granted Walker's petition for a writ of certiorari, vacated this court's decision in Walker I, and remanded for this court to reconsider an ineffective assistance claim that is unrelated to the current appeal. See Walker v. True, 540 U.S. 1013, 124 S.Ct. 567, 157 L.Ed.2d 426 (2003). Following this court's subsequent decision, see Walker v. True, 401 F.3d 574 (4th Cir.2005), the Supreme Court again...