In re: ERICK DANIEL DAVILA, Movant
No. 18-10455
United States Court of Appeals for the Fifth Circuit
April 23, 2018
On Motion for Authorization to File Successive Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of Texas
Before DENNIS,* SOUTHWICK, and HAYNES, Circuit Judges.
Erick Daniel Davila was convicted of capital murder in 2009 and is scheduled to be executed on April 25, 2018. After his unsuccessful pursuit of relief in state court, Davila sought federal habeas relief in 2014. The district court denied his petition in 2015, this court denied a certificate of appealability in 2016, and the United States Supreme Court affirmed our denial in 2017. He now moves for authorization to file a successive habeas petition under
FACTUAL AND PROCEDRUAL BACKGROUND
In February 2009, a Texas jury found Erick Daniel Davila guilty of capital murder and sentenced him to death. The jury found that Davila used a semiautomatic assault rifle to open fire on a children‘s birthday party at a home in Fort Worth, Texas. In the process of shooting and injuring multiple party attendees, Davila killed Annette Stevenson and her granddaughter, Queshawn Stevenson, age five. As this case has been exhaustively litigated since 2009, we simply cite our 2016 opinion for a fuller recitation of the facts. See Davila v. Davis, 650 F. App‘x 860, 863–65 (5th Cir. 2016).
Relevant to Davila‘s present motion for authorization, we explained in our 2016 opinion that Davila, a member of the Bloods gang, went in his girlfriend‘s black Mazda on the evening of April 6, 2008, to engage in what he described as a “shoot em up” with a friend. Id. at 864. The friend, Garfield Thompson, drove Davila both to
Detective Boetcher took handwritten notes of their subsequent interview with Thompson. In addition to identifying Davila as the shooter, Thompson made two statements, according to Detective Boetcher‘s notes, that Davila cites as relevant to his new habeas claim. According to the interview notes, Thompson discussed “family and drug use” with the detectives. In addition, Thompson stated that at some point on the day of the murders, Davila “changed [and] started [to] be uncontrollable and you could tell it in his eyes.”
The Texas Court of Criminal Appeals affirmed Davila‘s conviction and sentence on direct appeal. Davila v. State, No. AP-76,105, 2011 WL 303265, at *10 (Tex. Crim. App. Jan. 26 2011), cert. denied, 565 U.S. 885 (2011). Davila received an evidentiary hearing on state habeas review but was ultimately denied relief. Ex parte Davila, No. WR-75,356-01, 2013 WL 1655549, at *1 (Tex. Crim. App. Apr. 17, 2013), cert. denied, 134 S. Ct. 784 (2013).
Davila filed a federal habeas petition in April 2014. The district court denied all 11 of Davila‘s claims and denied a certificate
On March 27, 2018, Davila filed a subsequent state habeas petition under
DISCUSSION
Davila requests authorization to file a successive habeas petition under Section 2244 of the Antiterrorism and Effective Death Penalty Act (“AEDPA“). Before analyzing whether such authorization is warranted, we briefly summarize the relevant AEDPA provisions and corresponding case law that will shape our analysis.
Under
In addition to the prerequisites of Section 2244(b)(2),
In addition to the criteria for successive petitions provided by
In light of these constraints, Davila‘s claim can be summarized as follows. On February 8, 2018, his counsel met with Garfield Thompson. During that meeting and in a written affidavit provided thereafter, Thompson stated that he could personally testify that Davila was intoxicated on a variety of drugs at the time of the shooting. According to Thompson, the list of drugs included PCP, marijuana, and an “e-pill,” which Davila alleges was ecstasy. In a subsequent meeting and written affidavit provided on March 20, 2018, Thompson further alleged that he had “told the courts in 2008 that we were on drugs.” In addition, Davila argues that his counsel failed to receive Detective Boetcher‘s notes describing Thompson‘s statements about drug use and Davila‘s “uncontrollable”
A Brady claim requires that a defendant “prove that the prosecution suppressed favorable, material evidence that was not discoverable through due diligence.” Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002). Accordingly, Davila argues that because his prosecutor was also present for Thompson‘s criminal proceedings, the prosecutor would have been aware of Thompson‘s alleged statement to “the courts” in 2008 that he and Davila had been intoxicated on the day of the shooting. Further, he argues that Detective Boetcher‘s notes from the interview with Thompson were similarly unavailable to the defense at trial, known to law enforcement, and material to his intoxication defense. Essentially, Davila argues that but for the prosecution and law enforcement‘s failure to disclose Thompson‘s ability to testify about Davila‘s intoxication, he would have successfully utilized such testimony at trial. In the context of his current motion before this court, Davila argues that his Brady claim should proceed because “had this evidence been known to the jury, no reasonable factfinder would have found him guilty of capital murder.”
We must therefore determine whether authorization of Davila‘s claim is appropriate under
I. Section 2244
As discussed above,
Our authorization is therefore “tentative” in the following sense: the district court must dismiss the motion that we have allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied”
In determining whether Davila‘s claim may pass through the first gate, we must first determine whether Davila has ever presented his new claim in a prior federal habeas petition. Under
Under
As stated above, Davila must make a prima facie showing of these two requirements to pass through the first gate. A prima facie showing requires a sufficient showing of possible merit to warrant a fuller explanation by the district court. If in light of the documents submitted with the application it appears reasonably likely that the application satisfies the stringent requirement for the filing of a second or successive petition, we shall grant the application. In re Morris, 328 F.3d at 740 (quotation slightly edited for clarity) (quoting Bennet v. United States, 119 F.3d 468, 469–70 (7th Cir. 1997)).
We look first to
a. Due diligence
When a petitioner raises a Brady claim in a successive petition, our analysis distinguishes between the requirements of
We must therefore determine whether Davila exhibited due diligence in the investigation of the factual basis for the Brady claim he now seeks to bring.
Davila argues that for purposes of due diligence, his counsel became aware of the connection between drug use and his case in 2018 when Thompson explicitly alleged that Davila had been intoxicated on the day of the shooting. He also describes, however, how his counsel became aware of Thompson‘s own drug use during the investigation for his first federal habeas petition. During an interview with Davila‘s counsel in April 2014, Thompson “mentioned drug use in passing.” According to Davila, but for Thompson‘s eventual decision in 2018 to mention Davila‘s alleged drug use and “the court‘s” alleged knowledge of such testimony, Davila would have never been able to discover the factual
Under
We emphasized that our due diligence inquiry under
Although such a finding in Johnson eviscerated the merit of Johnson‘s underlying Brady claim, we are nonetheless focused solely on the due diligence exercised in discovering whatever the petitioner alleges to be the basis of his new claim, regardless of whether it is meritorious. See id. Accordingly, “[t]he failure to previously discover [the co-defendant‘s] stipulation [was] objectively a bar to Johnson‘s successive petition, irrespective of the merits of his Brady claim.” Id.
As in Johnson, Davila fails to demonstrate how he was not reasonably on notice about the factual basis for his new Brady claim at the time of his trial, let alone at the time of his first federal petition. He fails to provide any explanation as to why we should not arrive at the most obvious conclusion: that he has always been on notice about the underlying factual predicate for his new claim because he himself would know whether he had taken drugs on the day of the murders and that Thompson would have seen him in such a state. The record indicates that Davila recalled Thompson‘s presence with him on that day as he was the one to implicate Thompson for his involvement in the crime.
Davila‘s own knowledge aside, we are unpersuaded that his counsel was not also reasonably on notice about the relation between drugs and the events of the shooting after Thompson had “mentioned drug use in passing” during the investigation of Davila‘s first habeas petition. Given Thompson‘s role in the shooting, Davila‘s counsel has been on notice about the potential value of Thompson‘s accounting of
Given the lack of argument as to why the discovery of the factual predicate for his new claim exhibited due diligence, Davila would have the court simply assume that due diligence corresponds directly with the date of discovery. Such a standard plainly contradicts not only the plain language of
Davila fails to make a prima facie showing that the factual predicate for his new habeas claim could not have been discovered through the exercise of due diligence and thus could not have been included in his first federal petition.
b. Actual innocence
Although the requirements of
Davila argues that the underlying factual predicate of his Brady claim meets this high bar. He argues that his “main defense in guilt and innocence was that he did not intend to harm anyone but Jerry Stevenson.” According to Davila, “[s]howing the jury that [he] was so intoxicated that he had essentially become schizophrenic (someone high on PCP) would have gone a long way to support his defense.”
Davila acknowledges our precedent holding that “a petitioner cannot bring a successive claim” under
Texas argues that such a possibility is foreclosed by Texas law. Under the Texas Penal Code, “[v]oluntary intoxication does not constitute a defense to the commission of a crime.”
Notwithstanding the barrier in Texas law, we are not persuaded that Davila successfully makes a prima facie showing that no reasonable juror would have found Davila guilty of the underlying defense if Thompson‘s testimony had been admitted. Detectives interviewed numerous people, including both Davila and Thompson, as part of their investigation. Aside from Thompson‘s comment about Davila‘s “change” toward “uncontrollable” on the day of the shooting, neither of the two individuals made any indication that Davila had been using drugs on the day of the shooting. Davila alleges that Thompson‘s statement would indicate him being so intoxicated that he “essentially became schizophrenic,” yet the record elsewhere reflects that Davila was communicating with Thompson, giving him instructions, successfully moving around on foot, and operating a firearm with effectiveness, all during a period that Davila would also attempt to convince the jury that he was heavily intoxicated based on the statement of a co-defendant. Even if Davila opens the door to such a possibility with the jury, he has not made a prima facie showing that, based on the testimony, no reasonable juror would have found him guilty.
II. Procedural Default
Texas argues that denial is appropriate because Davila‘s claim is procedurally defaulted. The first way under
Texas accepts that Davila exhausted his claim in state court. See Ex parte Davila, 2018 WL 1738210, at *1. Texas does argue, though, that the Texas Court of Criminal Appeals relied on an independent and adequate state ground to dismiss the claim as an abuse of the writ. It cites our case law for the proposition that “citation for abuse of the writ is an adequate and independent state-law ground” for dismissal, making Davila‘s proposed federal claim procedurally defaulted.
We start by examining the Texas Court of Criminal Appeals order. It gave only a brief explanation for its dismissal. Acknowledging Davila‘s Brady claim, the court held that Davila “has failed to make a prima facie showing of a Brady violation[.]” Id. Texas also relies on a sentence at the end of the same paragraph which states: Davila “has failed to meet the requirements of Article 11.071 § 5. Accordingly, we dismiss this application as an abuse of the writ without reviewing the merits of the claims raised.” Id. at *1.
We analyzed this issue in two cases published on the same day in 2010. Balentine v. Thaler, 626 F.3d 842, 853 (5th Cir. 2010); Rocha, 626 F.3d at 820. In Rocha, we described how
In Rocha, we elaborated on the proper inquiry for dismissals based on Section 5(a)(1). We described the two-step inquiry the state court engages in to determine whether dismissal of the claim is required. Rocha, 626 F.3d at 833. Texas law requires the court to determine (1) whether the factual or legal basis for the new claim was unavailable as to previous applications, and (2) whether the specific facts alleged rise to a constitutional violation. Id. We stated that Texas courts will proceed to the second element only if the first is satisfied. Id. at 834. “If an applicant fails to satisfy the unavailability requirement, the § 5(a)(1) inquiry is over, and no merits determination takes place.” Id. “Only if the applicant can surmount the unavailability hurdle does the [Texas Court of Criminal Appeals] proceed to ask whether the application makes out a claim that is prima facie meritorious.” Id. This inquiry often proves difficult, however, as the state court frequently employs boilerplate language when dismissing claims as an abuse of the writ.
In a case cited in Rocha, we stated that “[t]he boilerplate dismissal by the [Court of Criminal Appeals] of an application for abuse of the writ is itself uncertain on this point, being unclear whether the [state court] decision was based on the first element, a state-law question, or on the second element, a question of federal constitutional law.” Ruiz v. Quarterman, 504 F.3d 523, 527 (5th Cir. 2007). Despite such difficulty, we nonetheless held that courts must “read [the] order of dismissal to determine which of the two elements of § 5(a)(1) was the basis of the court‘s dismissal.” Id. at 837.
In Balentine, we held that “a determination by a state court that a petitioner failed to make a ’prima facie showing’ of ‘sufficient specific facts’ to entitle him to relief is a decision on the merits.” 626 F.3d at 853 (quoting Rivera v. Quarterman, 505 F.3d 349, 359 (5th Cir. 2007)). Here, we are faced with potentially self-contradictory signals in the state court order as to which element of Section 5(a)(1) the court relied on in dismissing Davila‘s Brady claim. The court initially utilized merits-based language per Balentine in stating that Davila “has failed to make a prima facie showing of a Brady violation.” Ex parte Davila, 2018 WL 1738210, at *1. The end of that same paragraph, however, stated, “we dismiss this application as an abuse of the writ without reviewing the merits of the claims raised.” Id.
Perhaps one of the most important tools articulated in Rocha was the charge that courts are not required “to check our common sense at the door when we read an opinion of the [Texas Court of Criminal Appeals] with an eye toward ascertaining its decisional basis.” 626 F.3d at 837. Here, the court‘s language directed at the Brady claim looked not to the availability of the facts underlying the claim, but rather to the elements of the claim itself required for “a prima facie showing of a Brady violation.” Ex parte Davila, 2018 WL 1738210, at *1. Given that the prima facie
Davila‘s claim was not dismissed on the basis of an independent and adequate state procedural ground.
III. Time bar
Texas argues that regardless of whether Davila can fulfill the requirements of
We have already concluded that Davila was on notice regarding the factual predicate for his new Brady claim such that due diligence at the time of his trial and, in the alternative, during his first federal habeas investigation, would have reasonably led to its discovery. As we noted in In re Young, the time bar does not necessarily run from the date on which the petitioner alleges he discovered the new evidence, but rather the date on which he gains notice about such facts. 789 F.3d at 528. Davila was convicted in 2009, approximately nine years ago. He is well past any of the time bar metrics provided by
Because we hold that Davila failed to fulfill the requirements of
IT IS ORDERED that Davila‘s motion for authorization to file a successive habeas corpus petition is DENIED.
IT IS FURTHER ORDERED that Davila‘s motion for stay of execution is DENIED.
* Judge Dennis concurs in the judgment and concurs as to Part I(a) only.