United States District Court, D. Oregon
ERNEST H. BAKER, III, Petitioner,
RICK COURSEY, Respondent.
Anthony D. Bornstein, Assistant Federal Public Defender Portland, Oregon, Attorney for Petitioner.
Ellen F. Rosenblum, Attorney General, Nick M. Kallstrom, Assistant Attorney General, Department of Justice, Salem, Oregon, Attorneys for Respondent.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2254 challenging the legality of his state-court conviction for Murder. Because petitioner is unable to excuse the untimely filing of this case, the Petition for Writ of Habeas Corpus (#1) is dismissed.
The State of Oregon charged petitioner with one count of aggravated murder in March 2004 based on the death of his six-month old son, hereinafter referred to as Ernest IV. Respondent's Exhibit 102. Where petitioner appeared to face long odds at trial and claimed he could not recall the events of that day clearly, he agreed to enter a no-contest plea to intentional murder. As a result, the trial court dismissed the aggravated murder charge and sentenced him to a term of life imprisonment with a 25-year minimum. Respondent's Exhibits 101, 104.
On March 28, 2006, petitioner filed for post-conviction relief ("PCR") in Umatilla County Circuit Court. Respondent's Exhibit 106. Petitioner's appointed attorney in the PCR action felt that trial counsel had performed well and achieved an "outstanding negotiated plea." Petitioner's Exhibit 1. PCR counsel also advised petitioner that in the unlikely event they could find a meritorious claim so as to secure relief and proceed to a criminal trial, he would once again face the possibility of receiving a death sentence. Id. Counsel therefore strongly urged petitioner not to proceed with the PCR challenge. Id. As a result, petitioner voluntarily dismissed his PCR action on November 14, 2006. Respondent's Exhibits 107, 108.
On August 21, 2008, petitioner filed his first federal habeas corpus action challenging his murder conviction. The District Court dismissed the case as untimely and declined to issue a certificate of appealability. Respondent's Exhibit 118. Petitioner appealed those decisions, but the Ninth Circuit Court of Appeals also denied petitioner's request for a certificate of appealability.
On May 6, 2010, petitioner filed a second state PCR action which the PCR trial court dismissed as untimely and improperly successive. Respondent's Exhibit 111. The Oregon Court of Appeals affirmed that decision without opinion, and the Oregon Supreme Court denied review. Baker v. Coursey, 250 Or.App. 144, 281 P.3d 685, rev. denied, 352 Or. 377, 290 P.3d 813 (2012).
On March 15, 2013, petitioner applied to the Ninth Circuit for permission to bring a successive 28 U.S.C. § 2254 habeas action in this District. The Court of Appeals granted petitioner's application and directed the Clerk to transfer the Petition to this court. Petitioner's Exhibit D, p. 16. Respondent asks the court to dismiss the Petition because it is untimely. Petitioner concedes that the Petition is untimely, but asks the court to conduct an evidentiary hearing where he can establish his actual innocence so as to overcome the timeliness bar.
Habeas corpus petitioners must generally file their federal challenges to their state convictions within one year of the time those convictions become final by the conclusion of their direct review. 28 U.S.C. 2244 (d) (1) (A). A petitioner who fails to comply with this deadline may overcome such a default if he is able to show that he is actually innocent of his underlying criminal conduct. McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1928 (2013). In order to make a gateway showing of actual innocence, a petitioner must present "new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial" which establishes that "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 324, 327 (1995).
In the context of a habeas petitioner who seeks to introduce new evidence in an evidentiary hearing to establish his claim of actual innocence, "the court may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence." Id. at 331-32. "[A] federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner's part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown[.]" McQuiggin v. Perkins, 569 U.S. ____, 133 S.Ct. 1924, 1928 (2013).
Where petitioner opted to forego his trial in favor of a nocontest plea, the court cannot weigh any evidence adduced at a trial. However, during petitioner's entry of plea hearing, the State indicated that had the case proceeded ...