United States v. 2020-08-05 | 17-71714 | GARY STORY V. DEAN BORDERS | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY STORY,

Applicant,

v.

DEAN BORDERS, Warden,

Respondent.

No. 17-71714

ORDER

Application to File Second or Successive Petition Under 28 U.S.C. § 2254

Submitted August 4, 2020
*

Before: TROTT, SILVERMAN, and N.R. SMITH, Circuit Judges.

The application for authorization to file a second or successive 28 U.S.C.
§ 2254 habeas corpus petition in the district court is denied. The applicant has not
made a prima facie showing under 28 U.S.C. § 2244(b)(2) that:
(A) the claim relies on a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and (ii) the facts
underlying the claim, if proven and viewed in light of the evidence as a

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

AUG 5 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 17-71714
whole, would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.

The applicant seeks to rely on newly turned over evidence consisting of
physical samples taken during the 1976 autopsy of the victim. He contends that
the slides demonstrate the absence of any male DNA in the victim, which
undermines the jury’s finding that he committed the killing during the course of
committing a rape or burglary. Contrary to the applicant’s contention, the samples
are consistent with the medical examiner’s trial testimony that he saw no physical
signs of a sex act in the autopsy, and they do not undermine the circumstantial
evidence presented at trial. The applicant has failed to establish by clear and
convincing evidence that no reasonable finder of fact could have found he
committed the crime in question but for the prosecution’s failure to turn over the
samples prior to trial. See Brown v. Muniz, 889 F.3d 661, 675 (9th Cir. 2018).
Any pending motions are denied as moot.
No further filings will be entertained in this case.
DENIED.