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Newsome v. Amsberry

United States District Court, D. Oregon

February 20, 2018

RYAN NEWSOME, Petitioner,
v.
BRIGITTE AMSBERRY, Respondent.

          ANTHONY D. BORNSTEIN Assistant Federal Public Defender, Attorney for Petitioner

          ELLEN F. ROSENBLUM Attorney General SAMUEL A. KUBERNICK Assistant Attorney General, Attorneys for Respondent

          FINDINGS AND RECOMMENDATION

          Youlee Yim You, United States Magistrate Judge

         Petitioner, 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.

         BACKGROUND

         On 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.

         Petitioner 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.

         On 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, 2017.

         On 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.

         Respondent 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 ...


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