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Bluestein v. Taylor

United States District Court, D. Oregon

January 25, 2018

JERI TAYLOR, Respondent.

          Daniel Whitaker Bluestein, 16502295, Eastern Oregon Correctional Institution, 2500 Westgate, Pendleton, OR 97801. Petitioner pro se.

          Ellen F. Rosenblum, Attorney General, and Kristen E. Boyd, Assistant Attorney General, Oregon Department of Justice, 1162 Court Street NE, Salem, OR 97310. Of Attorneys for Respondent.



         United States Magistrate Judge John Jelderks issued Findings and Recommendation in this case on September 18, 2017. ECF 34. Judge Jelderks recommended that Petitioner's petition for habeas corpus under 28 U.S.C. § 2254 be denied and that the Court decline to issue a Certificate of Appealability.

         Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

         For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate's findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed, ” the Court review the magistrate's recommendations for “clear error on the face of the record.”

         Petitioner timely filed an objection. ECF 39. Petitioner attached new evidence to his objection. Respondent filed a response to the objection, and also argues that this Court should decline to exercise its discretion to consider the new evidence submitted by Petitioner. ECF 40. Petitioner filed a reply in further support of his objection. ECF 41.

         Petitioner objects that the Findings and Recommendation erroneously applies the standard under Schlup v. Delo, 513 U.S. 298 (1995), in refusing to excuse Petitioner's procedural bar and allow Petitioner's arguments of constitutional deficiencies to be heard on the merits. Petitioner also objects to the recommendation that a Certificate of Appealability not be issued.

         The Court exercises its discretion to consider the additional evidence provided by Petitioner with his objection. See 28 U.S.C. § 636(b)(1) (permitting a court to “receive further evidence” at its discretion); United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (discussing the Circuit split on whether a district court must or may consider new evidence when reviewing de novo a magistrate judge's findings and recommendation, and concluding that a district “has discretion, but is not required” to consider new evidence). Because the Court considers Petitioner's new evidence, the Findings and Recommendation's analysis regarding whether Petitioner has presented sufficient evidence under Schlup is no longer applicable. The Court conducts a de novo review (as it would regardless because Petitioner objected to the Findings and Recommendation).


         The victim in this case testified that she met Petitioner in the waiting room at a medical facility on the day of the assault, July 20, 2006. She further testified that after Petitioner asked the victim out on a date, she turned him down and told him she was married. Petitioner then learned that the victim worked as a loan officer, and later that day Petitioner asked the victim to come to Petitioner's mother's apartment to discuss a possible mortgage loan. The victim arrived at the apartment building at approximately 4:02 p.m., holding only a cell phone, keys, and a water bottle. She testified that as soon as she entered the apartment, Petitioner immediately began sexually assaulting her.

         The victim described how Petitioner moved the victim through the apartment, continuously assaulting her-backing her against the front door, moving her through hallways, backing her into the bathroom, pushing her against the sink, and laying her on the floor on several occasions, although never moving her into the bedroom. The victim testified that Petitioner raped the victim and at one point stated if she performed a certain sexual act on Petitioner he would let her leave. She performed that act. Petitioner then stepped away from the victim and told her she could leave and asked if he could call her. She responded in the affirmative so that he would allow her to leave. The victim also testified that Petitioner was naked. The victim gathered her clothing and quickly left before Petitioner changed his mind. The victim left the apartment building at approximately 4:50 p.m. Petitioner, although he did not testify at trial, argued that the evidence showed the encounter to be consensual.

         Approximately seven hours after the assault, the victim went to the hospital. A sexual assault nurse examined the victim. At trial, the nurse described several brown bruises on the victim's inner right thigh and a bruise that was brown, purple, and slightly yellow above her right buttock. The nurse also discovered two three-centimeter abrasions on either side of the labia majora folds, a one-centimeter abrasion to the posterior fourchette, and redness and bleeding inside of the vagina and cervix. Although the examining nurse could not determine the age of the bruises, she opined that the victim's injuries were consistent with her account of sexual assault. Petitioner was convicted of rape, sodomy, and sexual abuse and sentenced to 140 months in prison. He seeks habeas relief relating to this underlying conviction.


         In his habeas petition, Petitioner asserts numerous constitutional errors. Petitioner, however, filed his petition after the one-year deadline established in 28 U.S.C. § 2244(d)(1)(A), and so he is procedurally barred from having his petition considered on the merits. Thus, he seeks to have his otherwise-barred claims considered on the merits under Schlup.

         A. Standard of Review under Schlup

         Otherwise-barred claims may be considered on the merits by arguing a claim of “actual innocence” under the “narrow class of cases . . . implicating a fundamental miscarriage of justice.” Schlup, 513 U.S. at 315. As the Ninth Circuit explained,

The terminology in this area is sometimes confusing, because the “miscarriage of justice” exception, like the freestanding claim in Herrera [v. Collins, 506 U.S. 390 (1993)], has been described as a showing of “actual innocence.” But unlike a Herrera claim, the “miscarriage of justice” exception is not an independent avenue to relief. Rather, if established, it functions as a “gateway, ” permitting a habeas petitioner to have considered on the merits claims of constitutional error that would otherwise be procedurally barred.

Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir. 1997). The threshold for making out a Schlup-type of “‘miscarriage of justice' exception is lower than the ‘extraordinarily high' threshold for ...

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