United States District Court, D. Oregon, Portland Division
Thomas J. Hester Assistant Federal Defender Portland, Oregon Attorney for Petitioner
Ellen F. Rosenblum Attorney General Nick M. Kallstrom Assistant Attorney General Salem, Oregon Attorneys for Respondent.
OPINION AND ORDER
GARR M. KING, District Judge.
Petitioner brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. For the reasons below, I deny his amended petition  and dismiss this proceeding with prejudice.
Petitioner lived next door to the victim, Elaine Flowers. The two began a conversation in the hallway of their apartment complex on July 12, 2005, and petitioner followed Flowers into her apartment to continue the conversation. Flowers asked petitioner to massage her shoulders. He complied and the physical encounter became sexual. Flowers testified she did not consent and tried to get away from petitioner; petitioner testified the sexual activity was consensual. Petitioner left the apartment when Flowers told him to leave. Flowers called her best friend, who came and took Flowers to her apartment. The next afternoon, they called the police.
On November 10, 2005, a grand jury indicted petitioner with Unlawful Sexual Penetration in the First Degree, Sexual Abuse in the First Degree, and Attempted Sodomy in the First Degree, all by forcible compulsion. The court dismissed the Indictment, petitioner waived a jury, and the court tried petitioner on March 15, 2006, based on an Information charging petitioner with the lesser charges of Sex Abuse in the Second Degree, without consent; Sex Abuse in the Third Degree, without consent; and Attempted Sodomy, by forcible compulsion.
The court found petitioner guilty of all three charges and sentenced petitioner to 60 months' probation on the conviction for Sex Abuse in the Second Degree, 6 months' incarceration with credit for time served on the conviction for Sex Abuse in the Third Degree, and 60 months' probation on the conviction for Attempted Sodomy.
The Oregon Court of Appeals affirmed without opinion. Petitioner did not seek review from the Oregon Supreme Court, so the appellate judgment issued on July 31, 2007. Petitioner filed a petition for post-conviction relief on January 21, 2009. The post-conviction court denied relief, the Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review on November 1, 2012. Petitioner filed this habeas petition on November 7, 2012 with one ground for relief, ineffective assistance of counsel. Although the amended petition was unclear, petitioner clarified in his brief that he only intended to challenge the constitutionality of the 2006 convictions, and not his 2010 conviction for Failure to Register as a Sex Offender.
I. "In Custody" Requirement
The petitioner must be in custody for a federal court to have jurisdiction over a habeas petition filed by a state prisoner. Zichko v. Idaho , 247 F.3d 1015, 1019 (9th Cir. 2001). Respondents argue this court does not have jurisdiction to consider petitioner's claims against the two Sex Abuse convictions because his sentences of 60 months' probation for Sex Abuse in the Second Degree and 6 months' incarceration with credit for time served for Sex Abuse in the Third Degree had both expired before he filed this habeas petition. Petitioner does not provide any argument or explanation to the contrary. Thus, I will only address the conviction for Attempted Sodomy.
II. Actual Innocence
A one-year statute of limitations applies to petitioner's habeas petition. It begins to run on the date on which the judgment becomes final by the conclusion of direct review or the expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1). The limitations period is tolled for any period "during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).
Here, the one-year limitations period began to run when petitioner could no longer seek review from the Oregon Supreme Court, on July 31, 2007. Petitioner had until July 31, 2008 to file his habeas petition. Petitioner filed his petition for post-conviction relief on January 21, 2009, nearly 18 months later. Although the post-conviction relief filing would have tolled an unexpired limitations period to file this habeas petition, petitioner's limitations period had already expired. Thus, petitioner's habeas petition is untimely. Larsen v. Soto , 742 F.3d 1083, 1088 (9th Cir. 2013) (§ 2244(d) does not reinitialize the limitations period that ended before the state petition was filed). Petitioner does not dispute that his petition is untimely, but argues he has demonstrated his actual innocence sufficiently so that the statute of limitations does not bar this court from addressing the merits of his claim.
In a "narrow class of cases... implicating a fundamental miscarriage of justice, " Schlup v. Delo , 513 U.S. 298, 314-15, 115 S.Ct. 851 (1995) (internal quotation omitted), a federal court may address the merits of a habeas petition despite either a procedural bar or an expired statute of limitations. McQuiggin v. Perkins , 133 S.Ct. 1924, 1928 (2013) (adding statute of limitations bar to other types of procedural bar exceptions).
To pass through the Schlup gateway, a "petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup , 513 U.S. at 327. This exacting standard "permits review only in the extraordinary case, " but it "does not require absolute certainty about the petitioner's guilt or innocence." [ House v. Bell , 547 U.S. 518, 538, 126 S.Ct. 2064 (2006)]. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific ...