___________________________________________________

Appeal from the United States District Court for the Southern District of Texas

___________________________

ON PETITION FOR REHEARING

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

On reflection and after further review of the record, the petition for rehearing persuades usthat Graves has made a substantial showing of the denial of a constitutional right on his claim that thestate violated t he rule under Brady v. Maryland, 83 S. Ct. 1194 (1963), by failing to disclose thatGraves’ co-defendant, Carter, implicated his wife as a participant in the co mmission of the murdersto the prosecution in an interview the evening before Carter test ified in Graves’ capital murder trial.The sequence and substance of Carter’s statements and recantations the night before he test ified are less than clear. On the evening before he testified in Graves’ capital murder trial, theprosecutor interrogated Carter and had him take a polygraph test. Carter apparently changed hisstory about the murders and who was involved several times. In the original opinion, we grantedCOA on Graves’ claim under Brady that the state failed to disclose to Graves that Carte r hadinformed the district attorney in this session that Graves was not involved in the charged crime.During the same interrogation, Carter also implicated his wife in the murders. It appears thatstatement is the only time he did so. As described by the prosecutor at Graves’ first habeas hearing,“[A]fter he failed the polygraph here, he broke down and acknowledged that it was he, Graves andCookie, the three of them. Specifically, she had the hammer, he had the gun, and Graves had theknife, and he told us that. But then, to get him to testify, we have to agree, and that’s part of therecord, that we wouldn’t question about that third; i.e., Cookie.”(1) In the original opinion, we concluded that Graves’ Brady claim, predicated on Carter’s statement implicating his wife, wasprocedurally barred. We also concluded that even if Graves could overcome the procedural bar,Carter’s statement that his wife was an accomplice at the scene of the murders was not exculpatoryor material.

(1)The state had Carter testify to this agreement in his direct testimony.

After further consideration and review of the record, we are persuaded that reasonable juristswould find debat able the district court’s ruling that Graves’ claim was procedurally barred. Theprosecution’s reference to Carter’s statement about his wife before he test ified was so vague that itmay not have put Graves’ counsel on notice sufficient to cause counsel to make an inquiry that wouldlikely lead to full disclosure of Carter’s alleged statement implicating his wife in the actual commission of the murders (2). Before Carter testified, the prosecutor did not disclose that Carter implicated hiswife in the murders. He disclosed only that “Mr. Carter took a polygraph and the basic questioninvolved his wife, Theresa. It shows deception on that polygraph examination.” Although Theresa(also called Cookie) had been indicted, the state’s position was that she was involved after the fact.As discussed above, Carter’s statement that is at issue here allegedly placed her at the scene with oneof the murder weapons.

(2)We do not preclude the state from producing additional evidence tending to show thatGraves’ counsel was given additional information that put counsel on notice of this statement.

On reflect ion, we also find that jurists of reason would find it debatable whether Graves’petition alleging non-disclosure of this statement states a valid claim of the denial of a constitutionalright under Brady because a fact finder could conclude that this information was potentially materialand exculpatory. Carter’s statement that Cookie was at the murder scene could have been importantto Graves’ defense because the state’s theory was that the commission of the multiple murdersrequired at least two perpetrators. If Graves had been furnished with Carter’s statement, it couldhave provided him with an argument that those two persons were Carter and his wife rather thanCarter and Graves. The stat ement could have also been strong impeachment evidence especiallywhen considered in conjunction with the fact that Carter’s agreement to testify against Graves wasconditioned on a deal that the prosecutor would not ask any questions about his wife’s involvement.

The alleged statement exonerating Graves and the alleged statement implicating his wife aswell as the promise by the state not to question Carter about his wife’s part icipation were made inthe same interrogation the evening before Carter testified in Graves’ capital murder trial. Thisinformation could have provided a basis for a defense argument that Carter’s desire to exonerate his wife motivated him to falsely implicate Graves in return for the state’s promise to refrain from askingabout his wife’s participation in the crime. These statements are so closely tied together that thedistrict court should consider on remand the combined effect of the stat e’s failure to disclose bothalleged statements on Graves’ trial.

Accordingly, we grant in part the petition for panel rehearing and gr ant COA on Graves’claim that the state’s failure to disclose Carter’s alleged statement implicating his wife in the crimesviolated Graves’ rights under Brady. We deny the petition for rehearing in all other respects. Wetherefore remand this case to the district court for an evidentiary hearing to determine: (l) thesubstance of the alleged stat ement described above, along with Carter’s statement allegedllyexonerating Graves; (2) whether Graves was aware of these statements or exercised due diligenceto discover these statements; (3) whether the stat e’s failure to disclose these statements was materialto Graves’ defense under Brady; and (4) for a det ermination of whether Graves is entitled to reliefon these claims.

No member of the panel nor judge in regular active service of the court having requested thatthe court be polled on Rehearing En Banc (Fed. R. App. P. And 4thCir. R. 35), the Petition forRehearing En Banc is DENIED.

Petition for panel rehearing is DENIED in part; GRANTED in part; REMANDED.

Petition for en banc rehearing is DENIED.