United States District Court, D. Oregon
ANTHONY D. BORNSTEIN Assistant Federal Public Defender,
Attorney for Petitioner
F. ROSENBLUM Attorney General SAMUEL A. KUBERNICK Assistant
Attorney General, Attorneys for Respondent
FINDINGS AND RECOMMENDATION
Yim You, United States Magistrate Judge
an inmate at the Two Rivers Correctional Institution, brings
this habeas corpus action pursuant to 28 U.S.C. § 2254.
For the reasons that follow, the Petition for Writ of Habeas
Corpus (ECF #1) should be DENIED.
January 7, 2011, a Umatilla County jury convicted Petitioner
of four counts of Sexual Abuse in the First Degree, three
counts of Rape in the Second Degree, and one count each of
Sodomy in the First Degree and Online Sexual Corruption of a
Child in the First Degree. The trial judge sentenced
Petitioner to a total of 93 months of imprisonment, followed
by a term of post-prison supervision.
filed a direct appeal, but the Oregon Court of Appeals
affirmed without opinion and the Oregon Supreme Court denied
review. State v. Newsome, 255 Or.App. 635, 298 P.3d
1250, rev. denied, 354 Or. 62, 308 P.3d 206 (2013).
The judgment from Petitioner's direct appeal was issued
on September 26, 2013.
February 11, 2016, Petitioner filed a petition for state
post-conviction relief (“PCR") in Umatilla County
Circuit Court. The PCR trial court issued an order requiring
Petitioner to show cause why the PCR petition should not be
dismissed as time-barred under Or. Rev. Stat. ' 138.510,
which provides that a PCR petition must be filed within two
years of the date the appeal is final. Following a response
from Petitioner, the PCR trial judge withdrew the order and
allowed the petition to proceed. The PCR trial judge
ultimately denied relief. Petitioner appealed, but the Court
of Appeals dismissed the appeal upon finding that the PCR
trial judge's decision was not appealable. The appellate
judgment from Petitioner's PCR appeal issued on March 21,
March 2, 2017, Petitioner signed a Petition for Writ of
Habeas Corpus, which was filed in this Court on March 20,
2017. The Petition alleges four grounds for relief with
respect to Count 14, his conviction for Online Sexual
Corruption of a Child in the First Degree:
Ground One: New evidence has been found
within reliable court records, i.e., trial transcripts, to
sufficiantly [sic] establish a fundamental miscarrige [sic]
of justice to the conviction of count 14 but has not been
accepted do [sic] to timeline exhaustion of state remedies.
Ground Two: Conviction obtained at trial was
made by mislead [sic] of jury.
Ground Three: Appeals attorney Daniel
Bennett, failed as effective counsel in appeal when he would
not appeal the conviction of count 14 dispite [sic] “on
the record” evidence.
Ground Four: Post-Conviction court failed to
accept new found evidence that will result in a fundamental
miscarrage [sic] of justice.
contends the Petition should be dismissed as untimely.
Petitioner concedes he did not timely file his Petition under
28 U.S.C. § 2244, but argues the untimeliness should be
excused because he is ...