David Thatcher v. Dave Davey ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID CHARLES THATCHER, No. 15-72750
Movant,
v. MEMORANDUM*
DAVE DAVEY, Warden,
Respondent.
Motion for Authorization to File a Second or Successive
Petition Under 28 U.S.C. § 2254Argued and Submitted July 11, 2023
San Francisco, California
Before: BEA, BENNETT, and H.A. THOMAS, Circuit Judges.
David Charles Thatcher (“Thatcher”) moves a second time for authorization
from this court to file a second or successive habeas petition. Thatcher’s proposed
second or successive habeas petition raises five claims for relief based on
purportedly newly discovered evidence that he claims proves his innocence of the
three robberies of which he was convicted. Because the parties are familiar with the
facts of this case, we do not recite them here. We have jurisdiction pursuant to 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
U.S.C. § 2244(b)(3). We deny Thatcher’s motion.1
For Thatcher to be entitled to file a second or successive habeas petition, he must
demonstrate that he had not raised his current claims of constitutional error in a prior
habeas petition.2 Balbuena v. Sullivan, 980 F.3d 619, 634 (9th Cir. 2020) (citing 28
U.S.C. § 2244(b)(1)). Because his present motion relies on purportedly newly
discovered evidence, Thatcher must show that he could not have discovered that new
evidence previously through the exercise of due diligence. Brown v. Muniz, 889 F.3d
661, 668 (9th Cir. 2018). Further, Thatcher must make a prima facie showing that the
“newly discovered evidence [] shows a high probability of actual innocence.” Balbuena,
980 F.3d at 634–35. A movant satisfies his prima facie burden of proving that his claims
meet § 2244(b)’s gatekeeping requirements if he makes “a sufficient showing of
possible merit to warrant a fuller exploration by the district court.” Woratzeck v.
Stewart, 118 F.3d 648, 650 (9th Cir. 1997) (per curiam) (internal quotation omitted).
Thatcher’s proposed second or successive habeas claims were not presented
in his prior federal habeas petition that had been denied as time-barred.
Nevertheless, all of the purportedly newly discovered evidence Thatcher now raises
1
We GRANT Thatcher’s unopposed motion to take judicial notice of the court
records from his direct appeal and prior attempts to obtain post-conviction relief.
United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018).
2
Under § 2244(b)(1), only claims for relief presented in federal habeas petitions that
are actually filed in a district court constitute claims that were previously raised. See
Martinez v. Shinn, 33 F.4th 1254, 1262–64 (9th Cir. 2022).
2
was available to him had he exercised due diligence.3
Thatcher’s newly obtained evidence related to his purported accomplices, Leonel
Palafox and Freddy Patino, could have been obtained earlier. Because Mr. Palafox was
repeatedly identified as an accomplice, Thatcher was on notice to investigate what
evidence this “key player[]” could have provided. Morales v. Ornoski, 439 F.3d 529,
533 (9th Cir. 2006). Through an exercise of due diligence, Thatcher could have
interviewed Mr. Palafox in preparation for trial or in the six years prior to the filing of
his initial habeas petition. Id. Similarly, the newly discovered evidence related to Mr.
Patino’s failure to recall the robberies and his heavy drug use was available before
Thatcher’s trial in the form of Mr. Patino’s recorded police interrogation. In fact,
Thatcher’s trial counsel referred to this interrogation during his cross-examination of
Mr. Patino. Because the police interrogation was adduced at Thatcher’s trial, any
amount of due diligence would have enabled Thatcher to obtain the purportedly newly
discovered evidence regarding Mr. Patino in time to be presented timely in a first habeas
petition. Jones v. Ryan, 733 F.3d 825, 844–45 (9th Cir. 2013).
Ellen Greer, Thatcher’s newly identified alibi witness, declared that Thatcher
3
Thatcher pursued his direct appeal with counsel and had six years to investigate
any habeas claims during the time between his conviction and the filing of his initial
habeas petition. The access to counsel and the several years during which an
investigation could have been conducted support our determination that Thatcher
had plenty of opportunities to develop his claims and to obtain the purportedly newly
discovered evidence he now raises.
3
knew of Ms. Greer’s exculpatory evidence before his trial. Thatcher’s failure to raise
this evidence earlier, even though he had actual knowledge of its existence before his
trial, does not constitute due diligence. Id. And while Glory Slayton purportedly lied
on the stand about her sobriety on the morning of the third robbery, Thatcher’s trial
counsel, during cross-examination, alerted Thatcher to the fact that Ms. Slayton was
known to imbibe. Thatcher’s counsel’s cross-examination of Ms. Slayton put
Thatcher on notice that he should investigate Ms. Slayton’s drinking habits and the
reliability of her eyewitness testimony. Ford v. Gonzalez, 683 F.3d 1230, 1236 (9th
Cir. 2012). The fact that he did not timely do so before his first petition was a failure
to exercise due diligence. Id. Finally, David Segura’s declaration could have been
obtained earlier given Mr. Segura was mentioned by the police at Thatcher’s pretrial
hearing. In not investigating a potential witness, Thatcher failed to exercise due
diligence. Solorio v. Muniz, 896 F.3d 914, 921 (9th Cir. 2018).
Because Thatcher’s purportedly newly discovered evidence could have been
obtained earlier by exercising due diligence, he is not entitled to file his proposed
second or successive habeas petition under § 2244. King v. Trujillo, 638 F.3d 726,
732 (9th Cir. 2011) (per curiam).
MOTION DENIED.4
4
No petition for rehearing, motion for reconsideration, or request for similar relief
shall be filed or entertained in this case. 28 U.S.C. § 2244(b)(3)(E).
4