United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
Timothy J. Cavan United States Magistrate Judge
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.
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
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.)
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.)
response, Thorp set out additional claims, to include the
following purported Brady and/or constitutional
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.
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.