Marcel D. Thompson v. ISIDRO BACA, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCEL D. THOMPSON,
Applicant,
v.
ISIDRO BACA, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents.
No. 18-71374
MEMORANDUM*
Application for Leave to File a Second
or Successive Habeas Corpus Petition
Argued and Submitted January 14, 2021
San Francisco, California
Before: SCHROEDER, BYBEE, and R. NELSON, Circuit Judges.
Nevada state prisoner Marcel Thompson was convicted in 1994 of four
counts of sexual assault against a child under the age of fourteen and sentenced to
four consecutive life sentences. He now applies for leave to file a second or
successive (SOS) habeas petition pursuant to 28 U.S.C. § 2254. Thompson claims
FILED
JAN 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

-- 1 of 3 --

that he received the consecutive sentences on the basis of a pre-sentence
investigation (PSI) report that included the felony record of an individual other
than Thompson; he contends that he is therefore innocent of the felony convictions
that he claims formed the basis for the trial court’s imposition of consecutive,
rather than concurrent, sentences.
Under Nevada law, the trial court had unfettered discretion with respect to
whether to impose concurrent or consecutive sentences. Nev. Rev. Stat. Ann. §
176.035. We deny the application because, even assuming Thompson can
establish that the actual basis for the trial court’s decision in his case was flawed,
and that no reasonable factfinder would have imposed a similar sentence had the
PSI report been accurate, Thompson has not acted with due diligence as required
under the federal law.
At the time of sentencing in 1994, Thompson questioned the accuracy of the
PSI report on the ground that it included felony convictions and that he
had none. The judge ordered a fingerprint analysis that appears to have linked
Thompson to misdemeanors listed on the PSI report. Thompson filed state habeas
petitions in 1996, 1999, and 2004, asserting various claims. He filed a federal
habeas petition in 2006 that claimed, inter alia, that the sentencing court relied on
2

-- 2 of 3 --

“suspect evidence of prior convictions.” The district court denied the petition for
lack of any factual support “beyond petitioner’s mere allegation . . . .”
Thompson did not obtain an FBI Identity History Summary until 2016. The
FBI Report includes information relating both to Thompson and to a second
individual, listing prior felony convictions that could belong to the other individual
and not to Thompson.
We need not determine whether the record is sufficient to establish that, if
the FBI Report had been accurate, Thompson would not have received the
consecutive sentences. We also need not decide whether such a showing would
amount to the actual innocence necessary to support leave to file an SOS petition
pursuant to 28 U.S.C. § 2244(b)(2)(B)(ii). Although Thompson knew the accuracy
of the record was questionable at the time of sentencing in 1994, it was not until
2016 that he obtained the documentation from the FBI upon which he now relies.
Section 2244(b)(2)(B)(i) requires that “the factual predicate for the claim could not
have been discovered previously through the exercise of due diligence.”
Thompson has not satisfied that requirement.
DENIED.
3

-- 3 of 3 --