NOT FOR PUBLICATION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.
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

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“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.

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