Motion for Authorization to File Successive Petition for Writ
of Habeas Corpus in the United States District Court for the
Northern District of Texas
SOUTHWICK, and HAYNES, Circuit Judges.
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 28 U.S.C. §
2244, and for a stay of his execution. We DENY the motions.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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 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
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
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.
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.
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.
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.
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. §
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."
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).
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.
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."
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 ...