888 F.3d 179
5th Cir.2018Background
- Erick Davila was convicted of capital murder in Texas (2009) for a shooting that killed two victims; sentenced to death and set for execution April 25, 2018.
- Davila filed federal habeas in 2014; district court denied relief, Fifth Circuit denied a COA, and the Supreme Court affirmed in 2017.
- In March 2018 Davila filed a state successive habeas raising a Brady claim based on new statements by co-defendant Garfield Thompson that Davila was intoxicated during the shooting; the Texas Court of Criminal Appeals dismissed the application as an abuse of the writ.
- Davila sought Fifth Circuit authorization under 28 U.S.C. § 2244 to file a successive federal habeas raising the Brady claim and moved for a stay of execution.
- The Fifth Circuit considered whether Davila made the prima facie showings required by § 2244(b)(2): (a) diligence in discovering the factual predicate and (b) that the new facts would establish actual innocence by clear and convincing evidence; it also addressed procedural default and AEDPA time limits.
- The court concluded Davila failed to show due diligence, failed to make the requisite actual-innocence prima facie showing, and that the claim was time-barred; it denied authorization and denied the stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Prima facie authorization under §2244(b)(2)(B) — due diligence | Davila: Thompson’s explicit statements about Davila’s intoxication only surfaced in 2018; counsel didn’t obtain Boetcher’s notes until after his 2014 petition, so the factual predicate was not discoverable earlier. | State: Davila and counsel were on notice earlier (Thompson had mentioned drug use in 2014; Davila knew whether he used drugs); discovery date alone does not satisfy §2244 due diligence. | Held: Davila failed to show he exercised due diligence; §2244(b)(2)(B)(i) not satisfied. |
| 2. Prima facie authorization under §2244(b)(2)(B) — actual innocence standard | Davila: Thompson’s testimony would have supported an intoxication defense and negated intent, meaning no reasonable juror would convict. | State: Voluntary intoxication is not a defense under Texas law; evidence would not necessarily negate guilt; record shows Davila acted effectively (operated firearm, gave commands). | Held: Davila did not make the strict clear-and-convincing prima facie showing that, viewed with the whole record, no reasonable juror would find guilt. |
| 3. Procedural default / abuse of the writ | Davila: He exhausted state remedies; state dismissal used prima facie Brady language, reflecting a merits-based denial. | State: Texas argues dismissal was for abuse of the writ under Article 11.071 §5 and therefore constitutes an adequate independent state ground, procedurally defaulting the claim. | Held: Fifth Circuit reads the state order as merits-based (failure to show prima facie Brady); dismissal was not based on an independent and adequate procedural ground, so no procedural default on that basis. |
| 4. AEDPA statute of limitations (§2244(d)(1)(D)) | Davila: Claims arose with Thompson’s 2018 statements; authorization sought promptly. | State: Under §2244(d)(1)(D) and precedent, the limitations period runs from when petitioner was on notice of the factual predicate (not when he obtained corroborating evidence); Davila was on notice earlier. | Held: Even if §2244(b)(2) were satisfied, Davila is time-barred because he had earlier notice; claim barred by AEDPA limitations. |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution’s suppression of favorable, material evidence violates due process)
- Kutzner v. Cockrell, 303 F.3d 333 (5th Cir. 2002) (describes Brady elements and materiality inquiry)
- Johnson v. Dretke, 442 F.3d 901 (5th Cir. 2006) (distinguishes §2244(b)(2) due diligence from Brady elements; objective notice standard)
- In re Campbell, 750 F.3d 523 (5th Cir. 2014) (procedural framework for authorization of successive petitions under §2244)
- In re Young, 789 F.3d 518 (5th Cir. 2015) (limitations date runs from petitioner’s notice of facts supporting claim, not possession of supporting evidence)