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Thorp v. Fender

United States District Court, D. Montana, Billings Division

November 29, 2017

LEWIS GALE THORP Petitioner,
v.
DOUGLAS FENDER, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Timothy J. Cavan United States Magistrate Judge

         On September 18, 2017, Petitioner Lewis Gale Thorp filed this action under 28 U.S.C. § 2254. Thorp is a state prisoner proceeding pro se. Following a jury trial in January 2009, Thorp was convicted of Sexual Intercourse without Consent in Montana's Sixteenth Judicial District Court, Custer County. Thorp seeks to challenge his 2009 conviction.

         I. Background

         Thorpe previously filed a federal habeas petition challenging the same 2009 conviction. Thorp's petition was denied by this Court on its merits. Thorp v. Frink, No. CV-12-60-BLG-SHE-CSO (D. Mont. Judg. Entered Aug. 16, 2013). When addressing his prior petition, this Court set out in detail the facts underlying Thorp's criminal case and the procedural history following his conviction. See, Thorp v. Frink, No. CV-12-60-BLG-SEH-CSO, Find. & Rec. (Doc. 19 at 2-11.) Those facts will not be repeated here.

         In his present petition, Thorp asserts his actual innocence and alleges: the prosecution committed Brady violations by withholding and/or altering text messages presented at trial; that the victim has made numerous recantations; and that he had a dying declaration to support his claim of innocence. (Doc. 1 at 2-5.) Thorp was subsequently ordered to provide the Court with additional information relating to the claims he was attempting to advance. (Doc. 4.)

         Specifically, Thorp was directed to describe the evidence he believes to have been altered or withheld, and explain how the information would have been favorable to his defense or would have established his innocence. (Doc. 4 at 3-4.) Thorp was also asked to explain when he learned of this information. Id. at 4. Thorp was also ordered to explain the timing, circumstance, context, and to whom the victim made each alleged recantation. Id. Thorp was also directed to provide the same factual details surrounding the dying declaration he claimed demonstrated his innocence. Id. Thorp timely responded to this Court's Order. (Docs. 5; 5-1.)

         II. Thorp's Response

         In his response, Thorp set out additional claims, to include the following purported Brady and/or constitutional violations:

1. Text Messages. Thorp claims that a text message exchange that occurred between he and his brother, Dean Thorp, which was subsequently recovered by law enforcement officers from Dean's phone, was printed out of order and some of the messages were omitted. (Doc. 5 at 1.) Apparently, Thorp believes an incomplete picture was presented to the jury at trial. Id.
2. Phone Records. Thorp claims he did not receive phone records that were ordered to be produced by the trial court on January 8, 2008. Id. at 2.
3. Inconsistent Testimony of Barbara Natwick. Thorp claims County Attorney Wyatt Glade allowed Barbara Natwick to take the stand at trial and testify inconsistently with prior her prior statements. (Doc. 5 at 2.) This was after: i) Glade had received a letter from Natwick, dated January 20, 2008, where she expressed her belief in Thorp's innocence, and explained observations she had made about the victim's behavior around Thorp in the time frame after the sexual assault was alleged to have occurred (id); ii) Natwick testified at a bond reduction hearing that she had no knowledge of Thorp confessing to the crime (id); iii) Glade received a letter from Natwick, dated February 28, 2008, where she explained the reasons why the crime could not have happened as alleged (id); iv) Natwick testified she was not offered anything in exchange for her testimony when records show criminal charges were, in fact, dismissed by the prosecution (id.); v) dismissal of criminal charges against her, and Natwick changed her story and told investigators she believed Thorp to be guilty of the crime. Id. at 3.
4. Inconsistent Testimony of M.A. Thorp claims to have several people that would testify M.A. told them during 2006-2007 that Thorp was her favorite uncle. Id. at 3. One of these individuals, Elain Jones, advised Thorp of such a statement in a letter dated August 19, 2009. Id.
5. Recantation of Jordona England. Thorp claims that despite testifying at trial that Thorp admitted M.A. performed oral sex on him, Jordona England would now be willing to come forward and state that her mother, Barbara Natwick, coerced her into making that statement. Id. at 3.
6. Hearsay Statements. Thorp alleges the further inconsistencies included “numerous instances of hearsay evidence presented” at trial. Id.
7. New Evidence-Medical Records. Thorp claims he has newly obtained medical records, detailing a fall he sustained in September 2005 and subsequent complications he suffered. Thorp asserts these records show his injuries and the type of medications he was taking “would have made this crime almost impossible to have been committed by me.” Id.

         III. ...


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