David Hinkson v. United States ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ROLAND HINKSON, No. 19-71881
Applicant,
v. ORDER
UNITED STATES OF AMERICA,
Respondent.
Application to File Second or Successive
Petition Under 28 U.S.C. § 2255
Submitted November 15. 2021*
Before: OWENS, BADE, and LEE, Circuit Judges.
We have reviewed the application for authorization to file a second or
successive 28 U.S.C. § 2255 motion in the district court, as supplemented by
Docket Entry No. 23,1 the response,2 and the reply. The application, as
* The panel unanimously concludes this case is suitable for decision without oral argument. See
Fed. R. App. P. 34(a)(2).
1
The applicant’s motion to supplement his application to add a claim under United
States v. Davis, 139 S. Ct. 2319 (2019), filed at Docket Entry No. 10, is denied.
2
Respondent’s motion for judicial notice is granted as to the district court’s
August 28, 2012, memorandum decision and order in United States District Court
for the District of Idaho case number 1:12-cv-196-RCT, and as to the 2018
legislative history of Idaho House Bill No. 446. See United States v. Navarro, 800
supplemented, is denied. The applicant has not made a prima facie showing under
28 U.S.C. § 2255(h) of:
(1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty
of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
The applicant seeks to rely on newly discovered evidence consisting of an
affidavit from the government’s witness Elven Joe Swisher (“Swisher”) wherein
Swisher recants his trial testimony. The applicant contends that based on
Swisher’s recantation, no reasonable finder of fact would find Hinkson guilty of
solicitation of murder because the applicant’s conviction hinged solely on
Swisher’s trial testimony, and the corroborating evidence the government cites was
“hardly forceful.” Contrary to the applicant’s contentions, Swisher’s recantation of
his testimony is insufficient, when viewed in light of the evidence as a whole, to
make a prima facie showing that he could establish by clear and convincing
F.3d 1104, 1109 n.3 (9th Cir. 2015) (taking judicial notice of unpublished district
court orders); Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012)
(“Legislative history is properly a subject of judicial notice.”). Respondent’s
motion for judicial notice of Idaho Code 51-117 is denied as unnecessary. See
Fed. R. Evid. 201(a), advisory committee’s note to 1972 amendments; Von Saher
v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010).
2 19-71881
evidence that no reasonable factfinder would have found Hinkson guilty of the
offense. See 28 U.S.C. § 2255(h)(1).
The applicant’s motion at Docket Entry No. 15 is granted insofar as it
requests the court strike Docket Entry No. 3 and denied as to its request for
judgment on the pleadings.
No further filings will be entertained in this case.
DENIED.
3 19-71881