                   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 filed


     *
      Judge of the U.S. Court of International Trade, sitting by
designation.
     **
       Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.

                                         1
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 defaulted 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.” See 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 police



                                     2
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 Towery 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 actions 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,

     1

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 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   application   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 injury, 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,



                                    4
and (3) the evidence was material.”           Lawrence v. Lensing, 42 F.3d

255,   257   (5th    Cir.   1994)    (internal   citations     omitted);   see

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 by 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 the



                                       5
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 non-

attorney 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 court relied solely on the “law of the

case” doctrine in ruling that the protective 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
   issue or issues specifically discussed, [those issues] are
   deemed to have been decided tacitly or implicitly, and their
   disposition is law of the case.” Alpha/Omega Ins. Services,
   Inc. v. Prudential Ins. Co. of Am., 272 F.3d 276, 279 (5th
   Cir. 2001) (internal citations and quotes omitted).



                                  6
       Since, as explained below, we find that the district court put

sufficient        independent     analysis          into   its    ruling   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 from the procedural bar on habeas this Court had to

find that a miscarriage of justice would result.                      As 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.”                  Finley, 243

F.3d at 220 (internal citations omitted).                        “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 v. Anderson, 188 F.3d 635, 644 (5th

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

Brady context is evidence that raises "a reasonable probability

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

the proceeding would have been different."                       United States v.

Bagley, 473 U.S. 667, 680-82 (1985).                       Putting the Brady and



                                           7
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       granted.       We     remanded     “for

consideration of Finley’s Brady claim on the merits” and the

district 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   Brady

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 just



                                        8
possible but more likely than not that no reasonable juror would

have convicted him.”   Finley, 243 F.3d at 221.   The district court

did not err in finding that evidence of the protective order was

material and favorable to the defense.

                            Conclusion

     The district court’s grant of habeas is affirmed.




                                 9
