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Parmer v. Premo

United States District Court, D. Oregon

April 19, 2018

JAMES MICHAEL PARMER, Petitioner,
v.
JEFF PREMO, Superintendent, Respondent.

          FINDINGS AND RECOMMENDATION

          STACIE F. BECKERMAN United States Magistrate Judge

         Petitioner brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, challenging his Lane County convictions for two counts of Sexual Abuse in the First Degree and two counts of Attempted Sodomy in the First Degree involving his seven-year-old son who is autistic. For the reasons set forth below, the district judge should deny Petitioner's Amended Petition (ECF No. 34) and decline to issue a Certificate of Appealability.

         BACKGROUND

         On June 14, 2006, the Oregon Department of Human Services made a sex abuse referral to the Albany Police Department concerning Petitioner's alleged sexual abuse of his son"BW." Resp't Exs. (ECF No. 17), Ex. 114 at 3. On June 27, 2006, Albany Police Detective Ryon McHuron interviewed B W and concluded that it was "impossible to ascertain what type of touching [B W] was actually talking about. . . and he did not describe a clear sexual type of contact." Id. at 6. Several months later, McHuron interviewed Petitioner and he denied sexually abusing BW. Id. at 7.

         Petitioner subsequently submitted to a polygraph examination. Resp' t Ex. 115. The examiner concluded that Petitioner was not truthful when he denied fondling BW for sexual gratification. Id. at 4. According to the examiner, Petitioner subsequently admitted to sexually abusing BW. Id. at 5. Petitioner thereafter confessed to Detective McHuron that he had sexually abused BW. Resp't Ex. 116. On February 20, 2007, a grand jury indicted Petitioner on two counts of Sexual Abuse in the First Degree and two counts of Sodomy in the First Degree. Resp't Ex. 103. Following a bench trial, the court found Petitioner guilty of two counts of Sexual Abuse in the First Degree and two counts of Attempted Sodomy in the First Degree and sentenced him to 150 months imprisonment. Resp't Ex.101.

         Petitioner filed a direct appeal limited to the state law issue of whether Petitioner's confession was sufficiently corroborated. Resp't Ex. 104. The Oregon Court of Appeals affirmed Petitioner's conviction without opinion, and the Oregon Supreme Court denied review. State v. Parmer, 232 Or.App. 440 (2009), rev. denied, 348 Or. 281 (2010). The appellate judgment issued on June 11, 2010. Resp't Ex. 108.

         On January 21, 2011, Petitioner signed a state Petition for Post-Conviction Relief. Resp't Ex. 109. Petitioner subsequently filed an amended petition alleging that he received ineffective assistance of trial and appellate counsel. Resp't Ex. 110. The trial court denied post-conviction relief. Resp't Ex. 122. The Oregon Court of Appeals affirmed the denial of post-conviction relief without opinion, and the Oregon Supreme Court denied review. Parmer v. Premo, 267 Or.App. 423 (2014), rev. denied, 357 Or. 299 (2015). The appellate judgment issued on June 15, 2015. Resp't Ex. 127.

         Approximately one year later, on or about June 10, 2016, Petitioner mailed his § 2254 Habeas Corpus Petition to this Court alleging that there was insufficient evidence of his guilt, and that the trial court erred in allowing Officer McHuron to testify. Pet'r's Habeas Pet. (ECF No. I).[1] On October 24, 2017, Petitioner filed an amended petition alleging that the trial court "violated his Fifth Amendment rights (through the use of an unreliable, coerced confession) and Sixth Amendment rights (through the use of out of court statements [Petitioner] could not effectively confront and ignoring his invocation of the right to counsel)." Pet'r's Br. in Supp. (ECF No. 31) at 2; Pet'r's Am. Pet. at 2.

         Respondent contends that this Court should deny habeas corpus relief because Petitioner's original and amended petitions were not filed within the one-year time period allowed by 28 U.S.C. § 2244, and Petitioner procedurally defaulted his available state remedies by not raising his grounds for relief in state court. Resp't Resp. to Am. Pet. (ECF No. 35) at 1-2; see 28 U.S.C. § 2254(b) (1)(A) (requiring state prisoner to exhaust available state remedies prior to seeking federal habeas relief).

         Petitioner does not contest that his petitions were filed beyond the one-year limitation period or that he procedurally defaulted his available state remedies. Instead, Petitioner argues that this Court should excuse the running of the limitation period and his procedural default based on his colorable showing of actual innocence. Pet'r's Br. in Supp. at 2, 15-17. Additionally, Petitioner moves the Court to order an evidentiary hearing because "further factual development and briefing should be provided." Id. at 17-18.

         DISCUSSION

         Pursuant to 28 U.S.C. § 2244(d)(1)(A), a habeas petitioner must file his petition within one year of "the date on which the [state] judgment became final by the conclusion of direct review or the expiration of time for seeking such review." The limitation period is statutorily tolled during the time a properly filed application for state post-conviction is pending. 28 U.S.C. § 2254(d)(2).

         In the instant proceeding, it is uncontested that 495 days accrued between the date Petitioner's direct appeal became final and the date on which he mailed his original habeas petition to this Court, excluding the time during which his state post-conviction proceeding was pending. See Pet'r's Br. in Supp. at 2; Resp't Resp. (ECF No. 15) at 3-4; Resp't Resp. to Am. Pet. at 4, n. 1. Accordingly, his original and amended petitions are untimely absent a showing sufficient to overcome the expiration of the one-year limitation period.[2]

         Petitioner contends that he is entitled to an equitable exception to § 2244(d)(1) based on his colorable showing of actual innocence. Pet'r's Br. in Supp. at 2, 15-18. In support of this contention, Petitioner provides a recitation of the evidence presented during a suppression hearing (concerning the admissibility of his confession) and at trial. Id. at 3-13. Rather than pointing to new evidence to support a colorable showing of actual innocence, Petitioner simply argues that the evidence against him was insufficient because it "consisted only of ...


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