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In re Davila

United States Court of Appeals, Fifth Circuit

April 23, 2018

In re: ERICK DANIEL DAVILA, Movant

          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.

          PER CURIAM.

         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 no w moves for authorization to file a successive habeas petition under 28 U.S.C. § 2244, and for a stay of his execution. We DENY the motions.

         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 Fed.Appx. 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, we n t 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 and from the scene in the black Mazda. The investigation by Detectives Johnson and Boetcher of the Fort Worth Police Department led to Davila on April 8. Davila identified Thompson as the driver of the vehicle, and Thompson was arrested the following day.

         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 of appealability ("COA"). Davila v. Stephens, No. 4:13-CV-506-O, 2015 WL 1808689, at *1 (N.D. Tex. Apr. 21, 2015). We denied his request for a COA in May 2016. Davila, 650 Fed.Appx. at 860. The Supreme Court affirmed in June 2017. Davila v. Davis, 137 S.Ct. 2058 (2017). Texas thereafter moved the state court to set an execution date of April 25, 2018.

         On March 27, 2018, Davila filed a subsequent state habeas petition under Texas Code of Criminal Procedure Article 11.071 § 5(a)(1). He raised three claims, including the single Brady claim he now seeks to raise in federal court. See Brady v. Maryland, 373 U.S. 83 (1963) . The Texas Court of Criminal Appeals dismissed all three claims, holding in part that Davila "failed to make a prima facie showing of a Brady violation." Ex parte Davila, WR-75, 356-03, 2018 WL 1738210, at *1 (Tex. Crim. App. Apr. 9, 2018). He now seeks our authorization under 28 U.S.C. § 2244 to file a successive federal habeas petition in the district court. His only ground is the same Brady claim recently dismissed in state court.

         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 Section 2244, a petitioner seeking to file a second or successive federal habeas petition in district court must first receive authorization from a panel of this court. § 2244(b)(3). If the petitioner is seeking to raise a claim brought in a prior federal habeas petition, authorization must be denied. § 2244(b)(1). If the petitioner is seeking to raise a new claim not raised in a prior petition, we may authorize the petition to proceed only if certain statutory prerequisites are met. § 2244(b)(2).

         In addition to the prerequisites of Section 2244(b)(2), Section 2244(d) supplies a one-year statute of limitations for federal habeas petitions filed by persons in state custody. § 2244(d)(1). The period runs from various potential milestones, including "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." § 2244(d)(1)(D).

         In addition to the criteria for successive petitions provided by Section 2244, Davila's petition is likewise subject to the same jurisdictional prerequisites as any other federal habeas petition under Section 2254. For example, "[a] federal court generally cannot review the merits of a state prisoner's habeas petition if the claims in the petition are procedurally defaulted." Rocha v. Thaler, 626 F.3d 815, 820 (5th Cir. 2010).

         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" temperament until April or May of 2014 between the filing of his first and amended federal habeas petitions. According to Davila, these facts form the factual predicate for a claim under Brady v. Maryland.

         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 Section 2244. Texas argues that Davila's new claim not only fails to meet the statutory prerequisites of Section 2244 but also is ...


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